UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY AMERICAN STATUTE LAW m. SOULE'S RECENT PUBLICATIONS. Addison on Contracts, B. V. Abbott's edition, 3 vols $12.00 Austin's Farm Law and Game Laws 3°° Bateman on Auctions, Sheldon's Notes 500 Best on Evidence, Chamberlayne's edition 5.00 Browne on the Domestic Relations 230 Browne's Law and Lawyers in Literature 1.50 Chitty's Equity Index, new edition. Per vol 8.00 Cohen's Admiralty Law 5.00 Ewell's Pocket Blackstone 300 Ewells Essentials of the Law, 2 vols 5.00 Gray's Restraints on Alienation of Property 3.00 Heard's Equity Pleading 2.50 Indermaur's Condensation of Smith's Leading Cases .... 1.50 Lawyer's Reference Manual 4.00 Mews's English Common-Law Digest, 7 vols 56.00 Mews's English Criminal Digest 5.00 Schouler on Executors and Administrators 5.50 Sheldon on Subrogation 3.50 Soule's Dictionary of Synonymes 1.60 Stimson's American Statute Lavkr 6.50 Wallace on the Reporters, fourth edition 5.50 Williams's U. S. Tariff Laws 1.50 Wood on the Limitation of Actions 6.50 Wood on Railway Law, 3 vols 15.00 Prices all net. AMERICAN STATUTE LAW AN ANALYTICAL AND COMPARED DIGEST OF THE CONSTI- TUTIONS AND CIVIL PUBLIC STATUTES OF ALL THE STATES AND TERRITORIES RELATING TO PERSONS AND PROPERTY In Force January i, 1886 BY FREDERIC J. STIMSON BOSTON CHARLES C. SOULE lato JPttbltsficr 1886 Copyright, 1SS6, Bv Frederic J. Stimson. Onibtrsitjg IDxm: John Wilson and Son, Cambridge. PREFACE. MANY years ago the present writer conceived the idea of undertaking a work the object of which should be to digest and compare the statutes of the various states of the Union upon subjects of public general interest ; but the difficulties of treat- ment seemed at first so insurmountable that it was only after several years of patient consideration and practical experiment that the author felt emboldened to make the attempt. The prime difficulty was, of course, that of bulk. The statutes of the thirty-eight states, the eight organized territories, and the District of Columbia, in their latest and fullest revisions, are at present contained in two hundred and thirty-five octavo volumes, containing, at a rough estimate, about one hundred and thirty thousand large pages. To embody these, or even any considerable portion of them, in one or two volumes of manageable size seemed at the first sight a hopeless undertaking. Upon examination, however, the author found that the bulk of these voluminous laws was, after all, identical in the several states. He found that one main stream of legislation could be traced, occasionally comprehending all the Northern, Eastern, and North-Western states, more often divided into two main bodies, the one following in its legislation the general model of the State of New York, the other that of the New Eng- land states. He found, besides this, another important group, containing the South- Western states, under the general lead of Maryland and Virginia ; and still a third and smaller group, comprising the gulf states. Besides these three main groups, there was one state with laws wholly anomalous (Louisiana), and others (like California, Dakota, New Mexico, and Georgia) with laws peculiar to a greater or less extent. Here at once it became evident that, by a process of citing the respective laws once for all, with a list of all the states enacting them, and without repetitions, the work might be reduced by nine tenths or more of its first apparent size. But, furthermore, it will readily be seen that many of the statutes in all states are of purely local interest or special application. For instance, the law of the laying out of roads, of the manner of assessing taxes, and the laws creating special corporations, municipal or otherwise, or special kinds of corporations, can rarely be wanted by a lawyer outside of the state where such statute or corpoi-ation exists ; and as every one is presumed to have the statutes of his own state at hand, it would obviously neither be possible nor profitable to collate statutes of this description. And of course all private acts and local or special laws may be wisely omitted. Perhaps one half of the bulk of the statutes was taken away by these exceptions. And, finally, for the purposes of the present edition, the author has not deemed it advisable to collate the statutes of criminal law, nor many statutes of civil procedure, such as no one will be likely to want unless he is actually conducting a case in court out of his own state. 7731 7.'^, [y PREFACE. when, of course, he will have access to the laws of such foreign state. It has thus be- come possible to reduce the work to its present size, this volume, which is complete m itself, containing the state constitutions and all statutes affecting rights of property and private individuals ; and the second volume (which the author hopes to have ready in a year or more) to contain the law of corporations, public and private, of insolvency, and of procedure. Furthermore, every expedient that the author's ingenuity could suggest has been em- ployed to save space. The general law which prevails in the greatest number of states has been printed in large type ; the law which, though not so general, has been adopted in many, is printed in smaller ; and the law which is peculiar to one or two states, in the smallest typo of all. Tlie titles of chapter, article, section, title, etc., have been dropped throughout in citing the state laws, as explained in the Table of Citations. Indeed, this was a necessary change, as tlie terms were used with no uniformity of meaning in the state laws, and to retain them would only have resulted in inextricable confusion. Wherever a consecutive numbering is found in the revisions of the states it has been adopted, as being the simplest for citation purposes. It has, of course, been usually necessary to recast the laws in the author's words, as the wording is hardly ever identical in the several states, and to have retained it would have required a hundred volumes, instead of two, making the work practically impos- sible. The author has throughout chosen the clearest language, and the most concise, following by preference that wording which has been adopted in the greatest number of states, but never omitting to give the fullest and most particular statement which is anywhere to be found, and always giving more than one statement of the same law, as it exists in more than one state, if there seems to be the slightest probability that there is involved a real difference of meaning between the two. Frequently, owing to the obscurity of statutes or their imperfect or ambiguous ex- pression, ho ha.s been compelled to interpret them in the light of the similar laws of other states. Where this ha« been done, the author believes that his interpretation is generally the correct one. At all events, the law being in itself ambiguous or un- intelligible, it will serve to guide the reader to the meaning which the statute in question has in most of the states borne. It has been necessary to strictly exclude ciUvtions of cases, as that would practically have involved citing all the cases in all the state reports (for there are very few cases which do not directly or indirectly involve a statute), and the book would have been increased in volume to an unwieldy extent. F'or such points the reader is referred to the digests of case law. An index to the volume is appended ; but the author, by the requirements of his stibject, has adopted a general arrangement so carefully logical that he believes the reader, after a short experience of the book, will find the Table of Contents as exact and ftccurate a guide as he could wish. The general scheme of the work will be found there. Part I. comprises the state constitutions, and may be roughly divided into the /iUl nf Ili'/htM (Division I.), the Political Provisionfi (Division II.), and the Judicial Sij^'--tm (('hr\pter V. of Division II.). Part II., occupying all the rest of this volume, contains ull the general statutes relating to individuals, their persons, or property, save only those which relate to procedure in the courts. Division I. of Part II. contains the Btatutes uj>iri that law which may roughly be said to correspond to the old (but un- scientitic) clivision, made by Sir Matthf^w Hale, of the law into the law of things, and Divi-iion II. to lh<' law of prrsnnx. The terms Xormnl and Abnormal Law have, how- ever, seemed murh more exact to indicate the distinction the author had in mind, and they have been adopted. Dr. Thomas Krskino Holland, in his work on Jurisprudence, has adopted the general division of ler»nl aubjcrts which has seemed to the writer the most logical and the most exact, and, alis,'hfly modified, it is appended as follows, with the places of this work where the corresponding subjects may be found ; — PREFACE. V I. Private Law. 1. Substantive Law. Normal Law. (Part II., Division I.) Abnormal Law. (Part II., Division II.) 2. Adjective Law. (Part IV.) II. Public Law. 1. Constitutional Law. (Part I.) 2. Administrative Law. (Part III.) 3. Criminal Law, and 4. Criminal Procedure. (Not generally incorporated in this work. See Part. V.) III. International Law. (Except in so far as Inter-State law is analogous, it forms no part of this work.) It is needless to say that the arrangement of statutes in the state revisions them- selves by no means corresponds to that in this work (see General Scheme, below), nor, indeed, is it in any two states alike. Most states adopt the unscientific alphabetical ar- rangement of subjects, according to the initial letter of such subject-titles as they happen to adopt, which again, it may be added, are in no two states identical. Many states have a rough division of criminal or public laws ; and the others are shovelled in in a heap. Ohio, California, Dakota, Georgia, and Louisiana have attempted a logical arrangement. It occasionally happens that this diversity of arrangement has necessitated the inser- tion of similar provisions in different parts of this work, — though the author has suc- ceeded in avoiding this, except in rare instances, and has always tried to give a cross reference. Thus the law requiring an acknowledgment of a debt to be in writing in order to take it out of the Statute of Limitations is, in some states, placed under the law of limitations in the division of Civil Procedure (Part IV., Division II., of this work), and in others under that of contracts,—*, e., the Statute of Frauds (Part II., Division I., Title VI., of this work). The latter position has been chosen by the author ; and all such statutes will there be found together, with a cross-reference from Part IV., Division II. One of the other difficulties which at first suggested themselves to the plan of this work was the continual changing of the laws by the annual or biennial legislatures. To meet this the author proposes to publish biennial supplements, containing the ad- denda and corrigenda made by such laws to this edition of his work. One such will be found at the end of this volume containing laws published since the stereotyping of this edition. The author's experience has shown, however, that the number of coiTec- tions so required is surprisingly small. As a matter of fact, the several states at the present time do rarely change their important, substantive law; and the time of the annual or biennial legislatures is mostly taken up with private enactments, charters, revenue laws, and local improvements, none of which fall within the main scope of this work. For convenience of citation, in case there should be future editions, the sections and articles of this book have not been numbered consecutively, thus leaving places for future changes and additions without altering all the numbering of the book, and doing away with the necessity for star pages. See in the Explanatory Note. A volume like the present, based on no previous authority, containing nearly a thou- sand pages of matter, and attempting to present in brief a vast body of constantly-growing statutes, with the hundreds of thousands of citations of such statutes made necessary, can hardly be written and printed with mathematical accuracy. The author cannot Vi PREFACE. flatter himself that many errors hare not occurred. But the work has been twice veri- fied by him ; and a third verification would have made it necessary to have this edition a year behind its date, without any compensating increase in accuracy. And he hopes, at least, that most of the errors will be found to lie in the figures of the citations, and not in the essential part of the work, — errors of citation or of omission rather than positive misstatements of the law. Many things further occur to the author to say. The investigation of the growing legislation of five-aud-forty free commonwealths, with their errors, their experiments, and their reforms, has proved very suggestive both to the jurist and the student of social science. But this must be left for discussion in other places or in other books than the present. Two formal suggestions, however, the author cannot refrain from expressing; he hopes, for the relief of future students in this department of human science, that all the states will follow the example of the few in numbering their annual statutes, in separating general from special acts, and in not superimposing new statutes upon subjects already treated in the laws, without specifying what in the old is repealed, what is amended, and what is left to stand. BosTO.v, Jan. 20, 1886. EXPLANATORY NOTE, IN order to attain the conciseness required in this work without obscurity, the writer has adopted a few contrivances which will be easily understood when the reader's attention is once called to them. In the first place, the division for citation purposes is always into article and section, the article number being always the decimal of the sec- tion, and both are continuous throughout the book ; and gaps in the numbeiing are thus left at the ends of the articles and chapters. This is done both for convenience of citation, and in order to enable future editions of this book to be printed, incor- porating changes and additions in the state laws without changing the numbering of any section or article of the present edition. Thus Art. 414 is the Statute of Frauds; and any special provision will accordingly be numbered from § 4140 to § 4149; article 415, § 4150, succeeds, whether all these numbers are used in this edition or not. Many abbreviations are used, but will all be found in the table below. As further expedients to save space, citations of consecutive numbers are clearly indicated, but not written in full; thus §§ 4372-7 is printed instead of §§ 4371, 4372, 4373, 4374, 4375, 4376, 4377 ; and frequently when the same state statute runs through an article of this book, the abbreviation ih. is employed, referring the reader to the first place whei-e the law is cited in that ai'ticle, and thus avoiding innumerable repetitions of it. The same citation is never repeated in the same section of this work, but the abbreviation for the state is deemed sufficient ; the reader, in all such cases, being expected to look just above for the reference to the state law. The note references are the small letters a. 6, c. qIq_^ ^-)^(; 'v\rhen the same notes are referred to continually throughout all of one article or chapter in this book, they are printed as notes to the article or chapter, at the beginning of it, and such notes are always referred to by the note signs * \ % etc. The word state ordinarily includes any state or territory ; but when printed with a capital letter the word State always means the home state, or the state whose laws are referred to, as distinct from others. Finally, the states are always cited in the following order, which experience has shown to be the most convenient, viz. : Xew Hampshire, Massachusetts, Maine, Ver- mont, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Ohio, Indiana, Illinois, Michigan, "Wisconsin, Iowa, Minnesota, Kansas, Nebraska (Northern States) ; Maryland, Delaware, Virginia, West Virginia, North Carolina, Kentucky, Tennessee, Missouri, Arkansas, Texas (Middle States) ; California, Oregon, Nevada, Colorado, Washington, Dakota, Idaho, Montana, Wyoming, Utah (Western States) ; South Caro- lina, Georgia, Alabama, Mississippi, Florida, Louisiana, New Mexico, Arizona (Southern States) ; the District of Columbia. The abbreviations employed ai'e those ordinarily in use ; except that lo. is used for Iowa instead of la., it being found that the latter viii EXPLAXATORY NOTE. was in great danger of being confounded with Louisiana, owing to its close resemblance to La. in the type. For the same reason Uta. is used for Utah, to avoid too great a similarity with Vt. used for Vermont. The abbreviation U.S. in citations refers to the United States Revised Statutes; or to the United States annual laws, if followed by a year number. In conclusion, the author would remind the reader that when he fails to find the laws of the state of which he is in search upon any subject, it will be because such state has no statute uf)on the question; but it does not follow that the law as administered in the courts is not the same as in the states quoted. Generally the states follow the common law (see § 1003), or the law of that neighboring or older state to which they are historically related (see citation order above, and the remarks made in the Table of Citiitions). The California and Georgia provisions will be often a useful guide in determining the uouimou law upon any subject, as will be the Louisiana codes for the civil law. TABLE OF STATE CITATIONS, WITH EEMAEKS UPON THE CODES. The letter C. stands for Constitution, in all the state citations. The biennial or annual laws are always cited by year, chapter, number, or page and section, except where otherwise specified ; where the number of a citation is given with no title, it always means the latest revision or collection of general laws, as below specified for the several states respectively. Alabama (Ala.). Constitution of 1875, as printed in the Code of 1876 ; cited by article and section; thus, 17,2: Art. 17, § 2. Statutes: Code of 1876; cited by con- tinuous section number; thus, 4987: § 4987. Biennial Laios of 1879, 1881, 1883, 1885; cited by year, chapter, and section; thus, 1885,97,4: chapter 97, § 4, of the laws of 1885. The Code of Alabama is a moderately exhaustive code of the common law, based somewhat upon the statutes of New York and other states. Arizona (Ariz.). Statutes: Compiled Laws of 1877; cited by continuous section number as above. Biennial Laws of 1879, 1881, 1883, and 1885 ; cited by yeai*, chap- ter, and section as above. The original law of Arizona was Spanish or Mexican, upon which statutes, for the most part English or of the common law, have been engrafted. Arkansas (Ark.). Constitution of 1874, as printed in Mansfield's Digest; cited by article and section, as in Alabama. Statutes : Mansfield's Digest of 1884 ; cited by con- tinuous section number, as in Alabama. Biennial Laws: 1885; cited by year, chapter, and section, as in Alabama. The laws of Arkansas are moderately exhaustive, resem- bling those of Missouri. There is a code of practice, now incorporated in the Digest. California (Cal.). Constitution of 1873, as printed in Hittell's Codes; cited by article and section, as in Alabama. Statutes : Hittell's Codes of 1876, 2 vols., with Vol. HI., bringing them down to 1881 ; cited by continuous section number, as in Alabama, mod- ifications made by Vol. III. being indicated by suffixing the abbreviation Amt. Biennial Laws of 1883 and 1885 ; cited by year, chapter, and section, as in Alabama. The codes of California comprise the Political Code (§§ 1-4999), a Civil Code (§§ 5000-9999), a Code of Civil Procedure (§§ 10001-12104), and a Penal Code (§§ 13001-14614) ; and are the most exhaustive attempt at codifying the English common law yet made in the United States. Matiy of the civil-law provisions are also incorporated therewith and enacted in the codes. The codes of California have been largely copied by Dakota. There is a later edition, of 1885, by Deering. Colorado (Col.). Constitution (f 1876, as printed in the General Statutes of 1883; cited by article and section, as in Alabama. Statutes : General Statutes of 1883 ; cited by continuous section number, as in Alabama. Biennial Laws of 1885 ; cited by year, chapter, and section ; Civil Code of 1877, a code of practice ; cited Civ. C. A moderately exhaustive collection of statutes, based on those of New York, California, and other states. X TABLE OF STATE CITATIONS. Columbia, District of (D.C.). Most of the United States statutes which apply to the District of Columbia are found in the volume of United States statutes of 1873 (com- monly termed Post Roads), in that part which relates to the District (cited D.C.). The law of Maryhmd is commonly in force when there is no United States law applicable. Connecticut (Ct.). Constitution of 1818, as printed in Revision of 1875 and amended in Laws 1879, p. 490; cited by article and section, as in Alabama. Statutes: the Revision of 1875 ; cited by title, chapter, and section ; or by title, chapter, part, article, and section; thus, 18,11,1,1,3: Title 18, Chapter 11, Part 1, Article 1, § 3. Annual Laios of 1875, 1876, 1877, 1878, 1879, 1880, 1881, 1882, 1883, 1884, 1885; cited by vear, chapter, and section, as in Alabama. A brief collection of common-law statutes reseniblin<,' those in other New England states or New York. In future, the laws will be biennial ; see § 277. Dakota (Dak.)- Statutes : Levisee's Codes, 2 vols., 1883, containing the Code of Civil Procedure, cited by continuous section number (cited C. Civ. P.) ; the Political Code {Pol. C), cited by chapter and section; the Civil Code {Civ. C), the Probate Code (Prob. C), the Justice's Code (Just. C) ; the Penal Code {P. C) ; and the Code of Crim- inal Procedure (C Crim. P. or C Cr. P.), cited by continuous section number. Biennial Laws of 1885; cited as before. The Dakota codes are founded on those of California (most of which is re-enacted) and of New York. The Constitution of the proposed State of Dakota has not been incorporated in this edition. Delaware (Del.). Constitution, o/ 1831, as printed in the Revised Code of 1874 ; cited by article and section, as in Alabama. Statutes : Revised Code of 1874 ; cited by chapter and section ; thus, 124,8 : Chapter 124, § 8. Biennial Latvs : Vols. 15, 16, and 17, each volume being in two separate parts, each part containing the laws of one session ; thus, V. 17, Part 2, contains the laws of 1885. The parts are not, however, cited, as the chap- ters are numbered continuously through each volume. The statutes of Delaware, with those of South Carolina, are perhaps the most conservative and the least comprehensive of all the states and territories. Florida (Fla.). Constitution of 1868, as printed in the Digest of 1881 ; cited by arti- cle and section, as in Alabama. Statutes : Digest of 1881 ; cited by chapter and section, as in Delaware. Biennial Laios of 1883 and 1885; cited by year, continuous chapter, number, and section. The statutes of Florida form a moderately comprehensive com- raon-law code, like that of Alabama. Oeorgia (Ga.). Constitution of 1877, as printed in the Code of 1882 ; cited by article and section, as in Alabama. Statutes: Code of 1882 ; cited by continuous section num- ber, as in Alabama. Biennial Latos of 1883 ; cited by year, chapter, and section. The code of Georgia, with the exception of those of California and Dakota, is the result of the most ambitious and comprehensive attempt made by any state to codify the common law. It is l;xr:,'ely based on text-books. Idaho ilda.). The statutes of Idaho are in great confusion. The general laws of 1881 contain the Code of Civil Procedure (C. Civ. P. or Civ. C.) ; cited by continuous section nura<>er ; the laws of 1874-5 contain the Probate Code (Prob. C), besides many octs concerning miscellaneous subjects which are not numbered at all. Biennial Laws: 1874-5, 1870-7, 1879 (containini; tlie Criminal Code, Crim. C. and Criminal Practice Act, C. Cr. P.), 1881 (General Laws), 1882-3 and 1884-5. These laws are generally copied from those of Dakota or California. As the annual laws arc not numbered, they have to bo referred to by nimiber of page and section. Illinois (ni.). Constitution of 1870, as printed in Cothran's Revised Statutes of 188.T ; cited by article and section, as in Alabama. Statutes: Cothran's edition of 1883 (there ia a later compilation by Starr and Curtis) ; cited by chapter and section, as in iVlawarc. Blnunal Laws of 1885; cited by year, chapter, and section. A moderately comprehensive collection of common-law statutes, largely founded on New York law. TABLE OF STATE CITATIONS. xi Indiana (Ind.). Constitution of 1851, as printed in Revised Statutes of 1881 ; cited by article and section, as in Alabama. Statutes : Revised, of 1881 ; cited by continuous section number, as in Alabama. Biennial Laws of 1883, 1885, and 1885 Extra Session (^Ex.) ; cited by year, chapter, and section. A somewhat more comprehensive compila- tion than that of IlUnois. Many statutes in the states of Indiana, Illinois, Michigan, Wisconsin, and Minnesota are copied from New York. Indian Territory is subject to United States Laws. Iowa (lo.j. Constitution of 1857, as printed in the Revised Code of 1880 ; cited by article and section, as in Alabama. Statutes: Miller's Revised Code of 1880 (2 vols.); cited by continuous section number, as in Alabama. Biennial Laivs of 1882 and 1884 ; cited by year, chapter, and section. Iowa has the most extensive common-law code of any of the Northern states ; many civil-law provisions also are enacted in it. Kansas (Kan.). Constitution of 1859, as printed in the Compiled Laws of 1879 ; cited by article and section, as in Alabama. Statutes: the Compiled Laws of 1879 (Dassler) ; cited by chapter and section, as in Delaware. Biennial Laws of 1881, 1883, and 1885. A moderately comprehensive common-law compilation, founded on laws of New York, Ohio, and Iowa. There is another Dassler's Revision of 1885. Kentucky (Ky.). Constitution of 1850, as printed in the General Statutes of 1873 ; cited by article and section, as in Alabama. Statutes : the General Statutes of 1873 are cited down to p. 438 of this volume; thereafter, the General Statutes of 1881. Both are cited by chapter and section, which are genei'ally identical in the two editions. Bullitt's Codes {Civ. C. and Crim. C), 1876, cited by continuous section number. Biennial Laivs, 1873-4, 1875-6, 1877-8, 1879-80, 1881-2, 1883-4; cited by year and date of enactment. The statutes of Kentucky are conservative and not extensive, being largely founded on those of Virginia. Louisiana (La.). Constitution of 1879, as printed in Acts of 1880; cited by con- tinuous section number. Statutes : Revised Civil Code, Voorhis, 1875 ; cited by contin- uous section number without title ; Voorhis' Revised Laws, 1884 (D.); cited by continuous section number (thus, D. 223) ; Code of Practice (C. P.), Voorhis' 3d edition, 1882 ; cited by continuous section number (thus, C. P. 997). Biennial Laws, 1884. The Louisiana statutes are entirely civil law (based chiefly on the Code Napoleon, except for a few common-law statutes copied from other states and found only in the Revised Statutes) ;- and, as such, anomalous in the Union. See, however, New Mexico and Arizona ; and a few other states have enacted civil-law provisions in their codes; see Georgia, Iowa, California, Texas, and Dakota. Maine (Me.). Constitution of 1820, as printed in the Revised Statutes of 1883; cited by article, part, and section ; thus. Me. C. 4,1,8 : Article 4, Part 1, § 8. Statutes : Revised Statutes of 1883 ; cited by chapter and section, as in Delawai'e ; Biennial Laws of 1885. The statutes of Maine resemble those of Massachusetts, but are less extensive in scope. Maryland (Md.). Constitution o/'1867, as printed in code of 1878 ; cited by article and section, as in Alabama. Statutes: Revised Code of 1878 ; cited by article and sec- tion, like the constitution. Biennial Laivs : 1880, 1882, 1884. A moderately extensive common-law system, conservative -in scope, resembling the statutes in Pennsylvania and Virginia. There are also many local laws, not, of course, incorporated in this work. Massachusetts (Mass.). Constitution of 1780, as printed in the statutes ; cited by part, chapter, section, and article, or part, chapter, and article; thus, 2,5,1,1 : Part 2, Chapter 5, Section 1, Article 1. Statutes : Public Statutes of 1882 ; cited by chapter and section, as in Delaware. Anmial Laivs of 1882, 1883, 1884, and 1885. A conservative collection of statutes, but rather more comprehensive than those of the other New England states. Michigan (Mich.). Constitution o/1850, as printed in Howell's Statutes of 1882 ; cited by article and section, as in Alabama. Statutes : Howell's Annotated Statutes of xii TABLE OF STATE CITATION'S. 1882 (2 vols.) ; cited by continuous section number, as in Alabaina. Biennial Laws of 1883 and 1885. A very comprehensive collection of statutes, copying many both from New York and from ^Massachusetts. Minnesota (Minn.). Constitution of 1857, as printed in the General Statutes, 1878 ; cited by article and section, as in Alabama. Statutes : General Statutes of 1878 ; cited by chapter and section, as in Delaware. Biennial Laios of 1879, 1881, 1881 Extra Session (Ex.), 1883, and 1885. The statutes of Minnesota resemble those of Wisconsin, and are largely founded upon New York laws. Mississippi (Miss.). Constitution of 1869, as printed in Code of 1880; cited by article and section, as in Alabama. Statutes: Code of 1880 ; cited by continuous section number, as in Alabama. Biennial Laws of 1882 and 1884. A conservative common- law code, limited in scope, resembling that of Virginia. Missouri (Mo.). Constitution of 1875, as pi'inted in the Revised Statutes of 1879 ; cited by article and section, as in Alabama. Statutes : Revised Statutes of 1879 (2 vols.) ; cited by continuous section number, as in Alabama. Biennial Latvs of 1881 and 1883. A compilation of laws resembling those of Maryland, Virginia, or Tennessee, but more comprehensive ; several statutes are copied from those of New York or Illinois. Montana (Mon.). Statutes: Revised Statutes of 1879, containing a Code of Civil Procedure (C. Civ. P. or Civ. C), a Probate Code {Prob. C), a Criminal Practice Act (C. Crim. P.), a Code of Criminal Law (Crim. C), and the General Laws (cited G.L., or by continuous section number without other citation). Biennial Laws of 1879 {Ex.), 1881, 1883, and 1885. The laws of Montana are generally founded on those of California or Dakota. Nebraska (Neb.). Constitxition of 1875, as printed in Annual Laws of 1883 ; cited by article and section, as in Alabama. Statutes: Compiled Statutes of 1881, by Guy A. Brown ; cited by part, chapter, and section, or by part, chapter, article, and section ; thus, 1,2,4,10: Part 1, Chapter 2, Article 4, § 10. Biennial Laios of 1882, 1882 Extra Session {Ex.), 1883, and 1885. In the second volume of this work, the Com- piled Laws of 1885 will be referred to. A compilation resembling those of Iowa and Kansas. Nevada (Nev.). Constitution q/"1864, as printed in the Compiled Laws of 1873; cited by article and section, as in Alabama. Statutes : Compiled Laws of 1873 (2 vols.) ; cited by continuous section number, as in Alabama. Biennial Latvs of 1875, 1877, 1879, 1881, 188.3, and 1885. A brief collection of common-law statutes, based on those of the Northwestern states, with a few from California. New Hampshire (N.H.). Constitution 0/1792, as printed in the General Laws of 1878; cited by part and article; thus, 2,100: Part 2, Article 100. Statutes: General Laws of 1878 ; cited by chapter and section, as in Delaware. Biennial Laios of 1879, 1881, 18S3, and 1S85. The least exhaustive and most conservative system of laws of all the N»nv Ku'.'laiid states, resembling those of Maine and Massachusetts. New Jersey (N.J.). Constitution of 1844, as printed in the Revision of 1877; cited by artiitlo and paragraph section, or by article, section, and paragraph section ; thus, 4,8,1 : Article 4, Section 8, § 1. Statutes : Revision of 1877 (2 vols.) ; cited by title of cijaptcr and section, as the laws are arranged alphabetically by subjects; thus, Convey- aurrx, 4. App. stands for A])pendix ; Add., for Addenda. Annual Latvs of 1878, 1879, 1880, 1881, 1882, 1883, 1884, and 1885. A conservative common-law system, resem- blincf that of Pennsylvania. There is no revision, and consequently all laws are in force that have ever been enacted, if not repealed. New Mexico (N.M.). Statutes: Compiled Laws of 1884, printed both in Spanish and Kiiglish, litod by continuotis section number, as in Alabama. Biennial Latvs of 1884. The law of Now Mexico is founded on the Spanish or Mexican civil law, and on the Kearney Code, the treatise of Don Pedro Murillo de Lorde, and other law formerly in force in the territory ; to which occasional common-law statutes have been added, the TABLE OF STATE CITATIONS. xiii result being frequently confusing ; particulai'ly, as the territorial legislatures seem sel- dom to have understood the laws they were enacting. New York (N.Y.). Constitution of 1846, as printed in Vol. I. of Banks and Brothers' Revised Statutes ; cited by article and section, as in Alabama. Statutes : Banks and Brothers' Revised Statutes, 7th edition (4 vols.) ; cited by part, chapter, and section, or part, chapter, title, and section; thus, 1,8,1,8 : Part 1, Chapter 8, Title 1, § 8. The arrangement of New York laws leaves much to be desired ; there is no late revision, so that all laws are in force unless repealed, as in New Jersey and Pennsylvania; and old annual statutes are scattered throughout the volumes according to their subject-matter, so that much time must be lost in finding them, as they can only be cited by chapter and year. Volume IV. contains the Code of Civil Procedure {Civ. C), cited by continu- ous section number, and the Code of Criminal Procedure [Crim. C.), cited in the same way. Annual Laivs of 1882, 1883, 1884, and 1885. The New York laws are very com- prehensive in scope, and have been largely copied throughout the country. North Carolina (N.C.). Constitution q/*1868, amended 1876, as printed in the code of 1883; cited by article and section, as in Alabama. Statutes: The Code of 1883 (2 vols.) ; cited by continuous section number, as in Alabama. Bienyiial Laws of 1885. The code of North Carolina resembles the statutes of Virginia and Maryland, but is more comprehensive. Ohio (O.). Constitution of 1851, as printed in the Revised Statutes of 1880 ; cited by article and section, as in Alabama. Statutes: Revised Statutes of 1880 (2 vols.); cited by continuous section number, as in Alabama. Annual Laws of 1882, 1883, 1884, 1885 (each legislature having two sessions, one regular and one adjourned). The Ohio statutes form a comprehensive and logically arranged common-law code; many of them have been copied in other Western states. Many of them are founded on the laws of New York and the New England states. Oregon (Ore.). Constitution q/'1857, as printed in the General Laws of 1872; cited by article and section, as in Alabama. Statutes: The General Laws of 1872, containing the Code of Civil Procedure (C. Civ. P. or Civ. C), cited by continuous section num- ber ; the Criminal Code {Grim. C), cited in the same way ; and the Miscellaneous Laws {M. L. or no special citation), cited by chapter and section. Biennial Laivs of 1874, 1376, 1878, 1880, 1882, and 1885. A brief compilation, resembling in some respects those of Ohio or Vermont. Pennsylvania (Pa.). Constitution q/*1874, Buckalew's edition; cited by article and section, as in Alabama. Statutes: Brightly's Purdon's Digest of 1872-3 (2 vols.) is referred to down to p. 438 of this woi*k ; thereafter, the reference is in all cases to the edition of 1883. Both digests are cited by the titles of chapters, which are arranged alphabetically, as in New Jersey. There is no systematic revision of the statutes in Pennsylvania; see New Jersey, above. Biennial Laivs of 1877-8, 1879, 1881, 1883, 1885, cited as in other states. Purdon's Annual Digest {Ann. Dig.) contains the laws from 1873 to 1878. The Pennsylvania statutes form a consei'vative common-law col- lection, and have occasionally been copied by New Jersey, Maryland, and Delaware. Their unscientific arrangement, is much to be deplored, as is the custom of passing later statutes wholly or partially identical with former ones, and not repealing the earlier ones. The same statutes are often repeated under different heads. Rhode Island (R.I.). Constitution of 1842, as printed in the Public Statutes of 1882 ; cited by article and section, as in Alabama. Statutes : Public Statutes of 1882, cited by chapter and section, as in Delaware. Annual Laws of 1882, 1883, 1884, and 1885 ; there are two volumes (two sessions) each year, and all the chapters are num- bered continuously from those of the Public Statutes. The Rhode Island laws resemble those of the other New England states. South Carolina (S.C). Constitution o/*1868, as printed in the General Statutes of 1882 ; cited by article and section, as in Alabama. Statutes : General Statutes of 1882 ; xiv TABLE OF STATE CITATIONS. cited by continuous section number, as in Alabama, and containing the Code of Civil Procedure {Civ. C. or C. Civ. P.). Annual Laws of 1883, 1884, and 1885. The most conservative and least comprehensive system of all the states in the Union. Tennessee (Tenn.). Constitution of 1870, as printed in the Code of 1884 ; cited by article and section, as in Alabama. Statutes : Milliken and Vertrees' Code, 1884 ; cited by contiuuous section number, as in Alabama. Biennial Laws of 1885. The Tennessee statutes resemble those of North Carolina. Texas (Tex.). Constitution of 1876, as printed in the Revised Statutes of 1879; cited by article and section, as in Alabama. Statutes : Revised Statutes of 1879 ; cited by contiuuous section number, as in Alabama, and containing a Penal Code {P. C) and a Code of Criminal Procedure (C. Crim. P.). Biennial Latvs of 1879, 1881, 1882 Extra Session, 1883, 1884 {Ex.), and 1885. The laws of Texas resemble those of Missouri, but are more comprehensive, and have many statutes resembling those of California or of the civil law of Louisiana. United States (U.S.). As a rule, the United States statutes form no part of this work. Sec District of Columbia, and §§ 1, 4. Utah (Uta.). Statutes: Compiled Laws of 1876 {C. L., or with no title citation) ; cited bv continuous section number; Biennial Laivs of 1878, containing as Chapter 13 the Criminal Code {Crim. C) ; of 1880 ; of 1882 ; and of 1884, in which Chapter 55 is frequently cited as the Code of Civil Procedure {Civ. C. or C. Civ. P.), and Chapter 56 a.s the Probate Code {Proh. C.). The codes are cited by continuous section number ; but many of the other chapters in the laws are again subdivided into titles or chapters and sections, and cited accordingly. Many Utah laws are copied from California. Vermont (Vt.). Constitution of 1793, as printed in the Revised Laws of 1880; cited bv cliapter and article. Statutes : Revised Laws of 1880 ; cited by continuous sec- tion number, as in Alabama. Biennial Laws of 1882 and 1884. The Vermont laws are rather different from those of the other New England states, showing occasionally the influence of New York. Virginia (Va.). Constitution of 1870, as printed in the Acts of 1876-7; cited by article ami section, as in Alabama. Statutes: Code of 1873 ; cited by chapter and section, as in Delaware. Annual Laws of 187.3-4, 1874-5, 1875-6, 1876-7, 1877-8, 1878-9, 1879 Special Session (cited Ex.), 1879-80, 1880-1, 1881-2, 1882 Extra Session (cited Ex.), 1883-4, 1884 Extra Session. The annual laws are always cited by the later year in the title. The Virginia statutes form a conservative common-law system, and have been much copied in the Southwestern states. "Washington [Territory] (Wash.). Statutes: Code of 1881; cited by continuous section number, as in Alabama. Biennial Laws of 1883 ; cited by page and section number, as in Idaho. The laws often resemble those of Oregon. West Virginia (W.Va.). Constitution of 1872, as printed in the Laws of 1883; cited by article and section, as in Alabama. Statutes: Kelly's Revised Statutes, 1878 (2 vols"). Biennial Laws of 1879, 1881, 1882 (Adjourned Session), 1883, and 1885. Most of tlio statutes are founded upon or copied from those of Virginia. Wisconsin (Wis.). Constitution of 1848, as printed in the Revised Statutes of 1878; cited by article and section, as in Alabama. Statutes: Revised Statutes of 1878, OS amended by Sanborn and Deny man's Supplement of 1883 (cited Arnt. simjjly) ; cited by continuous section number, as in Alabama. Biennial Laws of 1885. The statutes resemble those of Michigan, but are not quite so comprehensive; founded chiefly upon New York laws. Wyoming (Wy.). Statutes: Compiled Laws {C. />.) of 1876 ; cited by chapter and Rcction, or rb:vptor, article, and section, without other title. Chapter 13 is the Civil C«Kle {Cir. C.) ; Cbaptcr 15, the Criminal Code {Crim. C). Biennial Laws of 1877, 1370, 1SS2, and 1884. The statutes resemble those of Montana. TABLE OF ABBEEVIATIONS. [For States, see Table of Citations.] Amt. — Ameudment. Ajip. — Appendix. Art. — Article. B. Bts. — Bill of Rights. C. — Constitution. Chap. — Chapter. Civ. (7. — Civil Code, or Code of Civil Pro- cedure. C. Civ. P. — Code of Civil Procedure. C. Cr. Pr. or C. Crim. P. — Code of Crim- inal Procedure. Crim. C. — Criminal Code. Div. — Division. Eng. Stat. — English Statute. Ex. — Extra Session. lb. — Ibidem ; same citation as that pre- ceding. P. — Part. P. C. — Penal Code. Pol C. — Political Code. Prob. C. — Probate Code. Sched. — Schedule. T. — Title. V. — Volume. lu this Volume; Part I. GENEEAL SCHEME. Constitutional Law : Division I. The Bill of Rights. Division II. Political Provisions. Part IL Private Civil Law Division I. Normal Law. Title I. Preliminary and General. Title II. Real Property. Title III. Successions. Title IV. Administration. Title V. Personal Property. Title VI. Contracts. Division II. Abnormal Law. Title I. Contract Relations. Title II. Natural Relations. In the forthcoming Volume : Part IIL Public Law : Division I. Private Corporations. Division n. Municipal Corporations. Part IV. Adjective Law : Division I. Probate Code. Division II. Civil Procedure. Part V. Criminal Law. CONTENTS. PART I. — The State Constitutions. § 1. Note 1 2. Interpretation 1 DIVISION I. — Bill of Rights. PAGE § 3, Note ^ 4. Bill of Rights 2 6. Construction of 2 ©Ijap. I.— aSill of asifgttst ©iba. PAGE § 6. Note 2 Art. 1. — Natural Rights. § 10. Freedom 3 11. Equality 3 12. Life and Liberty 3 13. Happiness 3 14. Safety 3 15. Property . , 8 16. lleputation 4 17. Special or Exclusive Privileges .... 4 18. Hereditary Privileges 4 19. Pensions 4 Art. 2. — Civil Rights. § 20. General Provisions 4 2L Color Distinctions 5 22. Exceptions to § 21 5 23. Sex Distinctions : Voting G 21. Sex Distinctions : Schools 6 25. Sex Distinctions : Occupation .... 6 26. Sex Distinctions : Property 6 27. Sex Distinctions : Custody of Children 6 Art. 3. — Slavery and Apprenticeship. § 30. Slavery Prohibited 7 31. Compensation for Slaves 7 32. Apprenticosliips 7 33. Terms of Service 7 Art. 4. — Religious Rights. PAGE . 7 § 40. General Rights of Conscience . . 41. Limitations on § 40 8 42. Compulsory Support of Churches ... 8 48. Established Church 8 44. State Support 8 45. Religious Test 9 46. Limitations on § 45 9 47. Oaths and affirmations 9 48. Sundays and Sabbaths 10 Art. 5. — Education. § 50. General Right 10 51. Free Schools 10 52. Time of Holding 10 53. Age of Pupils 11 54. Unsectarian Schools ....... 11 55. Compulsory Attendance ...... 11 56. Universities, etc H 57. The Language 12 58. Libraries 12 Art. 6. — Miscellaneous Rights. § 60. Freedom of Speech 12 61. Libel 12 62. Arms 13 63. Assemblies 14 64. Emigration 14 65. Immigration ... 14 Art. 7. — Rights at Law § 70. General Rights 71. Arrest and .Search 14 15 XVIU CONTENTS. PAGE 72. Trial by Jury 15 73. Exceptions to § 72 15 74. Waiver 10 75. Suits against the State 16 76. The Common Law 16 77. Laws Previously in Force 17 78. Miscellaneous Rights at Law .... 17 Art. 8. — Debtors. § 80. Imprisonment for Debt 17 81. Debtor Exemption Laws 18 82. Insurance 18 83. Homestead 18 84. Exceptions 19 85. Alienation 20 86. Recording 20 87. Duration 20 88. Stay Laws 21 89. Garnishment 21 Art. 9. — Eminent Domain. § 90. General Principles 21 91. Taking for Pubhc Use 21 92. Taking by Private Parties 21 93. Compensation 22 94. Jury Trial 22 95. The Amount of Compensation ... 23 96. Appeal 23 97. The Exercise of the Right against Franchises 23 Art. 10. — Citizens, Aliens. Language, etc. § 100. Who are Citizens 23 •101. Forfeiture of Citizenship 23 102. Aliens' Rights 23 103. Language 23 . Who May Convoy 117; 110<». Quia Emptore.H 117 Art. 111. — Of the Acqiiirement of Title. I § 1110. Settlers 117 1111 i:ru.t< bv the State 150 I paof. 1112. Vacant Land I'.O 1113. Land Certificates 150 1114. Rights of Settlers L'.O 1115. E.xemption 151 1116. Squatters 151 1117. Transfer 1"1 1118. Commons 151 Art. 112. — Title by Prescription. § 1120. Possession 152 1121. Against the State 152 1122 Ancient Possession 152 1123. Tacking Prescriptions 163 CONTENTS. XXUl Art. 114. — Eminent Domain. PAGE § 1140. General Principles 153 1141. Purposes 153 1142. Compensation 154 1143. What May be Taken 154 1144. Estate Taken 154 1145. Process 154 1146. The Reasons for Taking .... 155 1147. Jurisdiction of 155 1148. The Judgment 155 1148". Compensation 155 1149. Destruction of Property 155 Art. 115. — Escheat. § 1150. General Principles 155 1151. Of Real Property in Cases of In- testacy 155 1152. What Escheats 156 1153. Disposition of Estate 156 1154. Subsequent Claim by Heir . . . 156 1155. Persons under Disability .... 157 1156. Other Cases of Escheat 157 1157. Escheat of Personal Estate . . . 157 1158. The Dispositions 157 1159. Subsequent Claims 157 1160. Persons under Disability .... 158 1161. Other Cases of Escheat of Personal Property 158 1162. Attainder 158 1163. Administration Process 158 Art. 117. — Rights of Land Ownership. § 1170. Usque ad Coelura, etc 158 1171. Water Rights 159 1172. The Seashore 160 117.3. River Banks 160 1174. Accretions 160 1175. Marine Deposits 161 1176. Streams not Navigable 161 1177. Navigable Streams 161 1178. Levees and Ditches 161 1179. Irrigation 162 1180. Fruits 162 ©l)ai). II. — ©f 3HstatE3 in Hants. Art. 130. — Division and DefLuition. § 1300. Real Estate 162 1.301. Land 163 1302. Division by Duration 163 1303. Division by Time 163 1804. Division by Ownership 163 Art. 131. — Freeholds and Fees. § 1310. Freeiiolds 163 1311. Fees 164 1312. Fees-simple 164 131.3. Estates Tail 164 1314. Equitable Estates Tail 165 Art. 133. — Life Estates. § 13-30. What Are 165 1331. Incidents 165 PAGK 1.332. Waste 165 1333. Repairs 166 1334. Emblements 166 1335. Succession 166 Art. 134. — Chattel Interests. § 1340. Estates for Years 166 1341. Creation 166 1342. Incidents 167 1343. Waste and Repairs 167 1344. Estates at Will and Sufferance . . 167 Art. 135. — Future Estates. § 1350. Division and Definition 167 1351. Rights of Remainder-men .... 168 1352. Grants of Remainders and Reversions 168 1353. Waste 168 Art. 136. — Conditional Estates. § 1360. Conditions 169 1361. Nominal Conditions 169 1362. Repugnant and Impossible Conditions 169 1363. Illegal and Immoral Conditions . . 170 1-364. In Restraint of Marriage .... 170 136-5. Against Alienation 170 1366. Conditions Dependent 170 1.367. Performance 170 1368- Potestative 170 1369. Inheritance 171 Art. 137. — Joint Interests. § 1370. Definitions 171 1371. Joint Tenancy 171 1372. Incidents 172 1373. Tenancies in Common 172 1.374. Incidents 172 1375. Coparcenary 172 1376. Incidents 172 1.377. Waste 172 1378. Occupation and Account .... 173 1379. Contribution 173 Cljaj). III. — ©onbesaitcfnfl. Art. 140. — General Principles. § 1400. Seisin 174 1401. By Person Disseized 174 1402. Tortious Conveyances 174 140.3. Forfeitures 174 1404. Descent Cast 175 140-5. Time of Creation 175 1406. Shelley's Case 175 Art. 141. — Of the Parties. §1410. Who mny Convey 176 1411. Persons under Disability .... 176 1412. Persons not in Bi-ing 176 1413. Posthumous Ciiildren 176 1414. Heirs 177 XXIV CONTENTS. PAGE 1415. Dying without Issue 1J7 1416. Volunteers 1"^ 1417. The Disponible Part 177 Art. 142. — Of the Estate Conveyed. § 1420. What may be Conveyed .... 177 1421. Estates in Futuro Ip 1422. Life Estates 178 142.]. Future Estates ip 1424. Remainders 178 1425. Vested Keniaiiiders 17'J 1420. Contingent Remainders 179 1427. Estates in Terms 179 Art. 144. — Perpetuities. § 1440. General Rules 179 1441. Effect 180 1442. Of Personal Property 180 1443. Accumulations 180 1444. Effect 181 1445. Estates in Abeyance 181 1440. Religious Corporations 181 Art. 145. — 'Warranties. § 1450. Collateral 181 1451. Lineal 181 1452. Breach 182 145:J. Action 182 1454. Estoppel 182 1455. Louisiana Law 182 1456. Eviction 182 Art 146. — Other Covenants. § 14t)0. General Principles 183 1401. Rim with the Land 183 1402. Effect 184 140:{. Apportionment 184 1404. Concealing, etc 184 1405. Action.s, etc 184 1400. Assignment by Covenantee. . . . 184 Art. 147. — Of the Deed. § 1470. Feoffment Unnecessary 184 1471. Deed Necessary 185 1472. Release 185 1473. Fines and Recoveries 185 1474. Special Words 180 1475. Construction 180 1470. Recitals 180 Art. 148. — Statutory Forms. § 1 181). Prescribed Forms 187 1181. General Principles 187 1482. Form<« to ("onvoy the Whole Estate 187 1483. Qiiit<-laim Deed 188 1481. Mortgaues 180 148.5. Assignment of Mortgage .... 190 1 480. Deed of Trust 190 1487. Ix-nso 191 148S. Conveyances by Administrators, etc. 191 1489. Sherifl's Deed 191 Art. 150. — Forms of Covenants. PAGE § 1500. Implied Covenants 192 1501. Special Phrases 192 1502. Incumbrances 193 1503. General Warranty 193 1504. Special Warranty 193 1505. Seisin 193 1506. Right to Convey 193 1507. Further Conveyances 193 1508. Quiet Enjoyment 194 1509. Against Incumbrances 194 1510. Incumbrances by Grantor .... 194 1511. Covenants in Leases 194 1512. Against Assignment ...... 194 1513. For Repairs 194 1514. Quiet Enjoyment .194 1515. Re-entry 194 1516. Taxes 195 1517. Lessor's Implied Covenants . . . 195 1518. Lessee's Implied Covenants • . . 195 ©Jap. IV. — jyotmalities of ©onbrnancina. Art. 155. — General Principles. § 1550. Definitions 195 1551. "Deeds" 195 1552. "Purchaser" 196 Art. 156. — The Execution of the Deed. § 1560. In Writing 196 1561. Form 196 1562. Delivery 196 1563. Escrows 197 1564. Seal 197 1565. Form of the Seal 197 1566. Witnesses 198 1567. The Attestation 198 1568. Foreign Deeds 199 1569. Special Kinds 199 Art. 157. — Acknowledgment. § 1570. Necessity for 199 1571. Unacknowledged Deeds . . . . . 200 1572. Effect .200 1573. Manner 200 1574. Form 200 1575. Foreign Deeds 200 1576. The Certificate 200 1577. Form of Certificate 201 1578. Content of 201 1579. Statutory Forms 202 1580. Effect 203 1. 581. Foreign Acknowledgments . . . . 203 1.582. The Officer 203 1583. Double Certificate 207 1584. Miscellaneous Provisions .... 208 1585. Amending Acts 208 Art. 159. — Proof. § 1.590. Necessity 209 1591. Grantor Living 209 1592. Process 209 CONTENTS. XXV PAGE 1593. Method 210 1594. Grantor Dead or Incapable . . . 211 1595. Witnesses Dead 211 1596. Process 212 1597. Method 212 1598. Subpcenas 212 1599. Certificate 213 1600. Form 213 1601. Content 213 1602. Foreign Proof 213 1603. Special Cases 214 1604. Statutory Forms 214 1605. Appeal from Proof 215 1606. Proof by Action 215 Art. 161. Record. § 1610. Necessity 215 1611. Unrecorded Deeds 215 1612. Creditors and Purchasers .... 216 1613. Record Office 216 1614. Place of Record 217 1615. Time of Record 217 1616. Limitation 218 1617. Effect of Filing 218 1618. Entry and Receipt 218 1619. Manner of Record 219 1620. Indices 219 1621. Books of Record 220 1622. Custody of the Deed 220 1623. Requisites for Record 220 1624. What May be Recorded .... 221 1625. Effect of Record 223 1G26. Amending Statutes 224 1627. Record in Several Counties . . . 224 1628. Lost Deeds 224 1629. Re-record 225 1630. Foreign Records 225 1631. Provisional Record 225 1632. Compelling Record 225 €i)ap. v. — ®f 33otocrs. Art. 165. — General Powers. § 1650. Note 226 1651. Definitions 226 1652. General Principles 226 1653. Creation 227 1654. Record 227 1655. Revocation 228 1656. Effect 228 1657. Claims of Creditors 228 1658. Execution 229 1659. Form of Executing Instrument . . 229 Art. 167. — Powers of Attorney. § 1670. Execution 231 1671. Form of 231 1672. Acknowledgment 232 1673. Revocation 232 1674. Delegation 232 PAGE 1675. Form of Deed by Attorney .... 232 1676. Amending Statutes 233 ®i)ap. VI. — msts mti ffi:ru5ts. Art. 170. — Uses and Trusts in Land. § 1700. Civil Law in Louisiana 233 1701. General Principles 233 1702. The Statute of Uses 234 1703. Express Trusts 234 1704. Receivers 235 1705. Trusts for Persons Disappearing. . 235 1706. Implied Trusts 235 1707. Resulting Trusts 235 1708. Miscellaneous Cases 236 1709. Cy Pres Doctrine 236 Art. 171. — Creation of Trusts. § 1710. Form 236 1711. Record 236 1712. Words Necessary 237 1713. Louisiana Civil Law 237 Art. 172. — Rights of Parties. § 1720. Rights of Beneficiaries 237 1721. Rights of Creditors 237 1722. Proceedings Applicable 238 1723. Of Third Parties ." 238 1724. Assignment 238 1725. Rights of Purchasers ...... 238 1726. Testamentary Trusts 239 1727. Trusts Valid as a Power .... 2-39 1728. Determination 239 1729. Louisiana Civil Law 239 Art. 173. — Trusts in General. § 17.30. Definitions 247 1731. Purposes 247 1732. Creation 247 1733. Obligations of Third Persons ... 247 Art. 174. — Trustees in General. § 1740. General Provisions 248 1741. Duties of tlie Trustee 248 1742. Presumption against Trustees . . 248 1743. Mingling Property 249 1744. Accounting 249 1745. Co-Trustees 249 1746. Liability of Trustees 249 ®f)ap. VII. — 3Sj:pte55 Crusts. § 1750. Note 249 Art. 175. — General Principles. § 1751. Creation 249 1752. Declaration 249 175.3. Extinction 249 1754. Revocation 249 XXVI CONTENTS. (TDap. VIII. Dccti5. nntJ CTvust Art. 185. — General Principles. PAGE § 1S50. Definitions -'50 1851. Louisiana Civil Law 250 1852. Nature 200 1853. What May be Mortgaged .... 260 1854. What May Not be 2tJ0 1855. Extent of tiie Lien 260 IHutJ. Creation 260 1857. Form 261 1».J8. E.xecution 261 1859. Unrecorded Mortgages 261 1860. Tlie Defeasance 261 1801. Affidavit 2t;2 1862. Priority of ^lortgage Liens . . . 262 186.3. Tiie Condition 262 186i. To Secure Purchase-Money ... 262 1865. Mortgage Debt 262 1866. Subsequent Conditions 26.3 1867. Covenants in Mortgages .... 263 1868. Duration 263 186'J. Assignment 263 1870. Form of 263 1871. Effect 263 1872. Assignment of the Estate .... 264 1873. Antichresis 264 Art. 188. — Of the Parties. § 1880. Of the .Mortgagor 264 1881. Tiie .Mortgagee 204 1882. liight of Possession ...... 264 188.3. Entry before Breach 265 1884. Waste 265 1885. Tacking 265 Art. 189. — Trust Deeds and Special Cases. § 1^00. Special Cases of Mortgage 1801. Conditional Sales . . . 1802. Trust Deeds 180.3. Removal of Trustee . . 1804. Sale by Trustee . . . 265 265 265 266 26G Art. 190. — Performance and Discharge. HMX). Effort of Performance 266 IHOI. Discharge by the Mortgagee . . . 266 l'.M)2. Penalty 267 Ptn3. Relen.Me of Part , 267 UH)!. Payment by Instalments .... 2(57 1!»0.'). Mode of Release 267 1006. Forms of 26s 10()7. Mortgnpee Deceased 26s 1'J08. Erasure of Mortgages 260 Art. 192. — Foreclosure. 1020. Methods o^o 1021. Ry Entry . ! ! 270 1022. My Advertisement 270 1023. Ry Mortgagees in Possession . . . 270 1921. Power of bale 270 PAGE 1925. By Action . 272 1926. The Proceeds 274 1027. Effect 274 1928. Time of Foreclosure 275 1929. For Instalments Due 275 1930. Foreclosure by Bill 275 1931. Pending Foreclosure 276 1932. Concurrent Remedies 276 1933. Foreclosure by Assignee .... 276 19.34. Record of Foreclosure 277 1935. Foreclosure against Assignees . . 277 1936. Parties 277 Art. 194, — Redemption. § 1940. Opening Foreclosure 277 1941. Redemption Pending Foreclosure . 278 1942. Redemption after Condition Broken, but before Foreclosure 278 194.3. Redemption after Foreclosure . . 278 1944. General Principles 279 1945. Redemption by Creditors .... 279 1946. Final Decree 279 1947. Mortgagee in Possession .... 279 1948. Fraud 279 Art. 195. — Other Liens. § 1950. Vendor's Liens 280 1951. Nature of the Lien 280 1952. Purcbaser's Lien 280 195.3. Effect 280 1954. Lien on Crops 280 1055. Liens for Improvements .... 281 1956. Louisiana Civil Law 281 Art. 196. — Mechanics' Liens. § 1960. The Lien 282 1961. Person Entitled 282 1962. Nature of Improvement 283 1963. Conditions 284 1964. Contract 284 1965. Notice to the Owner 285 1966. Sub-Contractors 285 1967. Notice 286 1968. Record 287 1969. Effect 288 1070. Rights and Duties of Owner ... 288 1071. Amount of the Lien 288 1972. Rights and Duties of Head Con- tractor 289 1973. Subject Property 289 1074. Estate of Owner 200 1975. Preventing Lien 291 1976. Limitation for Suit 291 1077. When Work must be performed . 292 1978. Assignment of Liens 202 1079. Special Liens 292 1080. Co-existing Liens 292 1081. Removal of Liens 203 1982. Precedence 293 1983. Removal of Fixtures by Mechanic . 204 1081. Materials not Liable to Execution . 204 lOS.-). Other Suits 204 1086. Insurance 205 1987. Rights of Sub-Coutrnctora .... 295 CONTENTS. XXVll Art. 199. — Civil Law. PAGE § 1990. Of Constructing Buildings .... 295 ©tap. IX. — Unntilort antr STennnt. Art. 200. — Creation of Tenancy. § 2000. Note 297 2001. Definitions 297 2002. Tenancy without Contract .... 297 2003. Tenancy at Will 298 2004. Tenancy by Sufferance 298 2005. From Term to Term 298 2006. For Years 299 2007. For Life 299 2008. Attornment 299 2009. Attornment Unnecessary .... 299 2010. Conveyances of Rents 299 Art 202. — Rent. § 2020. Use and Occupation 300 2021. Tenants at Will 300 2022. By Sufferance 300 2023. For Life 300 2024. Rent Due Tenant for Life . . . . 300 2025. Rent Due Tenant pur Autre Vie . 301 2026. Rent Due the Husband 301 2027. Apportionment 301 2028. Apportionment among Sub-lessees . 301 2029. Anticipation of Rent 302 2030. Interest on Rent 302 2031. Distress 802 2032. Procedure in Distress 302 2033. Suits for Rent 302 2034. Special Lien for Rent 302 2035. General Lien 304 2036. Express Liens 304 2037. Farming on Shares 304 2038. Rent Charges 305 2039. Civil Law 305 Art. 204. — Miscellaneous Rights. §2040. Of tlie Tenant 306 2041. Of tlie Landlord 306 2042. Taxes 306 2043. Subleasing 306 2044. Alterations 306 2045. Repairs by Tenant 307 2046. Waste 307 2047. Fires 307 Art. 205. — Termination. § 2050. Tenant by Sufferance 307 2051. At Will 307 2052. From Year to Year 308 2053. Written Lease 308 2054. Non-Payment of Rent 309 2055. Condition Brolcen .309 2056. Notice 310 2057. Service 310 2058. Re-entry 310 2059. Illegal Trade 2060. Damages by the Tenant 2061. Damages by the Tenant. 2062. Destruction of Premises 2063. Surrender 2064. Emblements Art. 207. — Civil Law of Lease § 2071. Nature of the Contract . 2072. Letting out Things . . 2073. Obligations of the Lessor 2074. Obligations of tlie Lessee 2075. Dissolution of Leases . . PAGE 310 310 311 311 311 312 312 312 318 314 315 ©Ijap. X. — iFijrturcs anXi incorporeal jtlfgljts Art 210. — Fixtures. § 2100. Definition 317 2101. Appurtenances 317 2102. Removal of Fixtures 317 2103. Effect of Removal 318 2104. Preservation of Timber 318 Art. 211. — Franchises. § 2110. Grant of 318 2111. Ferries 318 Art. 213. — Servitudes. § 2130. 2131. 2132. 2133. 2134. 2135. 2136. 2137. 2138. 2139. 2140. 2141. 2142. 2143. 2144. 2145. 2146. 2147. 2148. Definitions 318 Predial Servitudes 319 Personal Servitudes 319 Ownership of Tenements .... 319 Nature of Right 319 Situation of Tenements 319 Servitudes Apparent 319 Servitudes Unchangeable .... 319 Negative Obligation 319 Servitudes Indivisible 319 Effect of Servitude 320 Origin of 320 Natural Servitudes 320 Legal Servitudes 320 Sic Utere Tuo, etc 320 Nuisance 320 Obligation to Repair 320 Destruction of Property 320 Other Legal Servitudes 321 Art. 215. — Easements. § 2150. Definitions 321 2151. Easements 321 2152. Creation 322 2153. Extent 323 2154. Apportioning Easements .... 323 2155. Future Estate 323 2156. Actions to Enforce 323 2157. Extinguishment 323 Art. 216. — Of New Works. § 2160. Louisiana Law 324 XXV 111 CONTENTS. Art. 217. — Walls. PAGE § 2170. Party Walls : Erection 325 2171. Dimensions, etc '^^^ 2172. Contribution 3^^ 2173. Ownership ^26 2174. Repairs 326 2175. Rights in Walls 326 2176. Double Walls 326 2177. E.xpress Agreement 326 Art. 218. — Fences. §2180. Enclosures 327 2181. Fences in Towns 327 2182. Erection 327 2183. Ownership 328 2184. Removal 328 2185. Repairs 328 2186. Maintenance of 329 2187. Express Agreement 329 2188. Lawful Fence 329 2189. Damages by Cattle 330 2190. Local Laws 330 2191. Ditches 331 2192. Trees 331 Art, 220. — "Ways. § 2201). Right of Way 331 2201. Ways of Necessity 331 2202. Roads 331 2203. Passage 332 2204. Footways 332 PAGE 2205. The Public Easement 332 2206. Rights of Abutters 332 Art. 225. — Miscellaneous Easements. §2250. Note 332 2251. Support 332 2252. Drip 333 2253. Drainage 333 2254. Light and Air 333 2255. Drawing Water 334 2256. Aqueducts 334 2257. Pasturage 334 2258. Telegraph . 334 Art. 228. — Acquirement of Easements. § 2280. Who May Acquire .334 2281. Prescription 335 2282. Prescription in Public Ways . . . 335 Art. 229. — Extinguishment. § 2290. Non-user 330 2291. Confusion 337 2292. Release 338 2293. Termination 338 2294. Prevention of Prescription .... 338 Art. 230. — Of the Parties. § 2300. Of the Owner of the Servitude . . 339 2301. Of the Estate 339 2302. Of the Servient Owner 339 2303. Manner of Use 339 DIVISION I. — NORMAL LAW. Title III. — Succession. Cl)ap. I. —In GcncraL Art. 250. — Definitions, etc. PAGE § 2.500. Note to Title 389 2.501. Definitions 340 2502. Legacies 340 Art. 251. — Successions a Vivis. § 2510. Presumption of Death 340 2.511. Effect 341 2512. Return 342 2513. Civil Death 342 2514. Ixjuisiana Provisions 342 2515. The Effects of Absence 343 Art. 252. — Donatio Causa Mortis. § 2.'i20. Definitions 343 25'21. Ocncral Principles 343 2522. Revocation 343 2523. As neainst Creditors 343 2524. Execution 313 2525. Confirmation 343 Art. 255. — Successions a Mortuis. § 2.5.50. Presumptions of Prior Death . . . 344 2551. Date of Succession 344 ©tap. IL— 5K5JfUs. Art. 260. — Of the Testator. PAGE § 2600. Definitions 344 2601. Mutual Wills 345 2602. Who may ]Make a Will 345 2003. Personal Property 345 2604. Competency 346 2605. Will Voluntary ; Fraud and Duress 346 2606. Error and Mistake 346 2607. Married Women 347 2608. Wills good in Part 347 Art. 261. — Of the Persons who may Take, § 2610. Generally 347 ' 2611. Debtors 347 2612. Creditors 347 2613. Witnesses 347 2614. Debt by Executors 347 2615. Illegitimate Children 348 2616. Concubines .348 2617. Guardians 348 2618. Mortmain 349 2619. Physicians 349 2620. Statute of Frauds 349 2621. Effect 350 CONTENTS. XXIX PAGE 2622. Unborn Children 350 2623. Aliens 350 2624. Estate in Common 350 Art. 263. — What may be Devised. § 2G30. General Provision 350 2631. Exceptions 351 2632. Disponible Part 351 2633. Keduction of Dispositions .... 352 2634. After-Acquired Property .... 353 Art. 264. — Execution. § 2640. In Writing 353 2641. Seal 354 2G42. Acknowledgment 354 2643 Knowledge by Testator 354 2644. Witnesses 354 2645. Holographic Wills 355 2646. Competency 355 2647. Wiio are Competent 356 2618. Devisees and Legatees 356 2649. Renunciation of Legacy 357 2650. Devise to Witness Void 357 2651. Devise to Heir 357 2652. Form 358 2653. Law 358 2654. Codicils 358 2655. Erasures 358 2656. Wills in Foreign Countries .... 358 Art. 267. — Revocation. § 2670. General Principles 359 2671. Definitions 359 2672. By Destroying 359 2673. Subsequent Wills 360 2674. What Wills may be Revoked ... 360 2675. Parol Revocation 360 2676. Implied Revocation 361 2677. Effect 362 2678. Revival 362 2679. Implied Revival 362 2680. Revocation by Action 362 Art. 269. — Preservation of Wills. § 2690. Deposit 362 2691. Enclosure 363 2692. Delivery 363 Art. 270. — Nunciipative Wills. § 2700. As at Common Law 363 2701. Louisiana Civil Law 364 2702. By Statute 364 2703. Execution 365 2704. Must be Written Out 365 2705. Property Devisable 366 Art. 271. — Universal Legacies. § 2710. Louisiana Law 360 2711. Legacies under a Universal Title . 367 2712. Particular Legacies '367 A. 272. — Disinheritance. § 2720. Louisiana Law 367 ©Jap. III. — Kntctprctatfon of SffiUUs. Art. 280. — Construction of Wills. PAGK § 2800. General Principles 369 2801. Parol Evidence 369 2802. Ambiguities 369 2803. Testator's Intentions 369 2804. Devise to a Class 370 2805. Conversion 370 2806. Will Speaks from Death .... 370 2807. Form of Devise, etc 371 2808. Construction of Devises 371 2809. After- Acquired Property .... 371 2810. Subsequent Conveyance .... 372 2811. Ademption of Legacies 373 2812. Advancement of Devisees .... 373 2813. Destruction of Legacy 373 2814. Dispossession 374 2815. Vesting of Legacies 374 2816. Interest on Legacies 374 2817. Accretion 374 2818. Property Undevised 375 2819. Mortgaged Property 375 2820. Devise with Charge 375 2821. Disclaimer 375 2822. Failure or Lapse 375 2823. Representation 376 2824. Words of Purchase 377 2825. Conditions 377 2826. Election 377 2827. Cy Pres Doctrine 378 Art. 284. — Omissions in Wills. § 2840. Of the Widow in a Will before Marriage 378 2841. Of tlie Widow in a Will after Marriage 378 2842. Children born before Will .... 378 2843. Children born after Will .... 378 2844. Posthumous Children 379 ®l)ap. IV. — Jriitcstate Succession. Art. 300. — General Principles. § 3000. Definitions 380 3001. When Succession Takes Place 380 Art. 301. — What Descends. § .3010. Estate Descendible 380 3011. What Does not Descend .... 381 3012. Accretions 381 Art. 302. — Heirs. § 3020. Definitions 382 3021. Capacity of Heirs 383 3022. Acceptance 383 3023. Refusal 386 3024. Benefit of Inventory 386 3025. Constitution of Heirs 388 3026. Unworthiness of Heirs 388 3027. Establishment of Heirs 389 XXX CONTENTS. Art 3100. 3101. 3102. 3103. 3104. 3105. 8106. 3107. 31U8. 3100. 3110. 3111. 3112. 3113. 3114. 8115. 8116. 8117. 8118. 8110. 3120. 3121. 3122. 3123. 3124. 3125. 8126. 3127. 310. — Course of Descent. PAGE Note ^^^ Children Living, Wife or Husband Dead 390 Same Case : Personalty 390 Children Dead, Grandchildren Living 391 Personalty ^^^1 Children and Wife or Husband Living 391 Personalty 392 Children and Wife or Husband Dead 393 Personalty 395 Children Dead, Wife, etc. Living . 395 Personalty 396 No Issue, Widow, nor Father . . . 396 Personalty 397 No Issue, Parents, nor Widow . . 397 I'ersonalty 398 No Issue nor Parents 398 Personalty 398 No Issue, Widow, nor Brothers . . 398 Personalty 398 No Issue, Parents, nor Brothers . . 398 Personalty 399 No Issue,Parents, Brothers, nor Widow 399 Personalty 400 No Kindred 400 Personalty 401 No Kindred nor Widow 401 Personalty 402 Cases Unprovided for 402 Art. 313. — General Provisions of Descent. § 31.30. Tenure 402 3131. Law Governing 402 81.32. Primogeniture and Sex 402 8133. Half-Blood 403 31.34. Descent and Purchase 403 3135. Persons not in Esse 404 31.30. Posthumous Children 405 8137. Per Stirpes, Per Capita 405 81.38. Heprcsentation 405 31.39. Next of Kin 400 3140. Foreign Intestates 407 Art. 315. — Illegitimate Children. § 31.50. Definition 408 8151. Inheritance by Bastards .... 408 8152. Inheritance from the Father . . . 408 81.5.3. Inheritance by and from Bastards . 409 8154. Inlieritance from H:i,'3. General Law 411 3104. Advancement to Ancestors . . . 411 81f.5. Hotchpot 412 ^\W. Descent of Advanced Property . . 412 3107. Value of 412 PAGE 3168. Advancements to Other Heirs . . 412 3109. Partitions by Parents 412 Art. 317. — Civil Law of Collations. § 3170. What Collation is, etc 413 3171. To Whom it is Due 414 3172. How it is Made 415 ©ijap. V. — ©f tl)c aaffiljts of tijc ffiJUiKoto aixtr J^usbanlr. Art. 320. — Dovyer § 3200 Note 418 3201. General Provisions 418 3202. Amount .......... 418 3203. Conveyance by the Husband . . . 419 3204. Inchoate Dower .419 Art. 321. — The Dower Estate. § 3210. General Principles , 419 3211. Dower in Lands not Possessed . . 419 3212. Equitable Estates . 420 3213. Lands Mortgaged After Marriage . 420 3214. Lands Mortgaged Before Marriage . 421 3215. In the Estate of a Mortgagee . . . 421 .3216. In Surplus Proceeds 421 3217. In Trust Estates 421 3218. In Lands Leased and Exchanged . 421 3219. In Wild Land 422 Art. 323. Rights of Dowress. § 3230. General Principles 422 3231. Waste 422 3232. Repairs 422 3233. Emblements 422 Art. 324. — Barring Dower. § .3240. Note 422 3241. Bar by Jointure 423 3242. By Settlement of Personalty . . . 424 3243. After Marriage 424 3244. By Husband's Will 424 3245. By Deed 425 3246. Forfeiture of Dower 426 3247. Forfeiture of Jointure, etc 427 3248. Failure of Jointure 427 3249. By Act of Husband 427 .3250. By Descent 428 Art. 326. — "Widow's Waiver. § 3260. Note 428 3201. Separate Property 428 3262. Waiver of Will 428 3263. Limitations 429 .3264. Waiver of Dower 429 3265. Method of Waiver 429 3260. Effect of 430 3267. Process 430 Art. 327. — Assignment of Dower. § .3270. Note 431 .3271. By the Heir 431 3272. By the Probate Court 431 CONTENTS. XXXI PAGE 3273. Process 431 8274. By Suit 4-32 3275. Method 432 3276. Division by Bounds, etc 432 3277. Selection of Lands 433 3278. Damages for Withholding Dower . 4.33 3279. Lands Aliened 434 3280. Fraud 435 3281. Insolvent Estates 435 3282. Further Claim 435 Art. 330. — Curtesy. § 3300. Note 435 3301. Amount 435 3302. Extent 436 3303. Election 436 3304. Bar 436 PAGE 3305. Waiver of the Will 436 3306. Waiver of Curtesy 437 3-307. Forfeiture 437 3308. Waste 437 3309. Eviction 437 Art. 340. — Descent of Community Property. § 3100. Louisiana Law 437 3401. On the Death of the Wife .... 437 3402. On the Death of the Husband . . . 438 3103. In all Cases 438 3404. New Mexico 438 3405. The Jointure Estate 438 Art. 345. — Homestead. DIVISION I. —NORMAL LAW. Title IY. — Administration. DIVISION L— NORMAL LAW. Title V. — Personal Property. ©Ijajj. L — eSenctcil 33robfsions. Art. 400. — Definitions. PAGE § 4000. Note 439 4001. Definitions 439 4002. Choses in Action 439 4003. Civil Law of Movables 439 Art. 401. — Estates in Personalty. § 4010. Creation 440 4011. Law 440 4012. Increase 440 4013. Restrictions 440 Art. 403. — Choses in Action. § 4030. Definitions 440 4031. Assignment of Choses in Action . . 440 4032. Suits by Assignee 441 4033. Method of Assignment 442 4034. Consideration 442 40.3.5. Record 442 4036. Suits against Assignees 442 4037. Due Diligence 442 4038. Fraud 442 Art. 404. — Ferae Naturae. PAGE § 4040. General Principles 443 Art. 405. — Acquirement of Title. § 40.50. Mixture .443 4051. Uniting Materials 443 4052. Trespasses 444 4053. Accession 444 4054. Occupancy 444 Art. 406. - — Trademarks, Deeds, and Names. § 4060. Property in Trademarks .... 445 4061. Definitions 446 4062. Warranty Marks 446 4063. Names 446 4064. The Good Will 446 4065. Title Deeds 446 Art. 407. — Patents and Copyrights. § 4070. General Principles 446 4071. Transfer 446 4072. Publication 447 4073. Subsequent Inventor 447 4074. Letters 447 DIVISION I. — NORMAL LAW. Title VL — Of Contracts. ®l)ap. I. — esencral 33rinciplc3 Art. 410. — Definitions. PAGE § 4100. Contract 447 4101. Subject of Contract 448 4102. Essentials 449 PAGE 4103. Absolute and Conditional .... 449 4104. Void Conditions 449 4105. Entire or Severable 449 4106. Apportionment 449 4107. Mutual Assent 449 4108. Consent in General 449 4109. Breach of Contracts 452 xxxu CONTENTS. Art. 411. — Of the Parties. PAGE § 4110. Wlio may Contract 452 4111. Incapacity as a Defence 452 4112. Lex Loci 453 41 IC. Joint Contracts 453 Civil Law 453 Rules wliich Govern 453 Death of Parties 454 Volunteers 454 Who are Parties 454 4114. 4115. 4116. 4117. 4118. The Consideration. Art. 412. - § 4120. Nudum Pactum 454 4121. Consideration Presumed 455 4122. The Object of the Contract ... 455 4123. Want or Failure of Consideration . 456 4124. Mistake 456 4125. Inadequacy 456 4126. Impossible Considerations .... 456 4127. Good in Part 466 4128. Moving from Another 457 Art. 413. — Void Contracts. § 4130. What are 457 4131. Seals 457 4132. Gaming Contracts 457 4133. Record 458 4134. Holidays 458 4135. Sunday Contracts 459 Art. 414. — The Statute of Frauds. §4140 4141, 4142 4143 4144 4145 Clause 4 • ... 459 Additional Clauses and Exceptions . 461 The Memorandum 461 Clause 1 461 Clause 16 462 Performance 462 4146. Representations of Character . . . 462 4147. New Promise, etc 463 4148. Other Contracts in Writing . . . 463 4149. Fraud 464 Art. 415. — Extinction of Contracts. § 4150. General Principles 404 4151. Release by Operation of Law . . . 464 4152. Novation 464 41.53. Louisiana Law 404 4154. Confusion 465 4155. Loss of the Tiling Due 465 Art. 416. — Payment. § 4160. To Wiiom it must be 466 4161. Ry Post 406 4162. What is 400 4163. Effect 406 4104. Manner 466 4165. Stake-holders 466 4100. Appropriation 466 4167. Civil Law 467 4168. Subrogation 409 4169. Tender 469 Art. 417. — Performance. PAGE § 4170. Effect 470 4171. What is 470 4172. Excuse 470 4173. Prevention 470 4174. Part-Performance 470 4175. Tender 471 4176. After Suit 472 4177. Effect 472 4178. Demand 473 Art. 418. — Release and Compromise. § 4180. Accord and Satisfaction ..... 473 4181. Effect 474 4182. Compromise 474 4183. Release 474 4184. Remission of the Debt 475 4185. Compensation 475 Art. 419. — Other Defences. § 4190. General Principles 476 4191. Duress 476 4192. Fraud 477 4193. Undue Influence '.478 4194. Mistake 478 4195. Civil Law of Error 478 4196. Non est Factum 481 4197. Confession and Avoidance .... 481 Art. 420. — Constraction of Contracts. § 4200. By the Court 481 4201. The Intention of the Parties ... 481 4202. Parol Evidence 482 4203. Meaning of Words 482 4204. The Construction which Upholds . 482 4205. Time 483 4206. Louisiana Law 483 4207. Obligations to Perform Equity, etc. 484 Art. 421. — Rescission. General Prin- ciples. § 4210. General Principles 484 4211. Rescission 484 4212. Alteration 485 4213. Cancellation 485 Art. 422. — Civil Law. § 4220. Lesion 485 4221. Revocation 487 4222. Aleatory Contract 487 422.3. The Action of Nullity 487 Art. 423. — Special Kinds. § 4230. Charter Party 488 4231. Government Lands 488 4232. Annuities 488 42-33. Recognizances, etc 488 Art. 424. — Of Obligations in General- § 4240. Definitions 488 4241. Interpretation 489 CONTENTS. XXXlll PAGE 4242. Limited and Unlimited Obligations . 490 4243. Conjunctive and Alternative . . . 491 4244. Divisible and Indivisible .... 491 4245. Effects of the Divisible Obligation . 492 4246. Transfer 493 4247. Of Personal, Heritable, and Real Obligations 493 4218. The Obligation of Giving .... 494 Art. 425 — Quasi Contracts. 4250. General Provisions 496 4251. Management of Affairs 496 4252. Payment of a Thing not Due . . . 497 etljnp. II. — aUailmcitts. Art. 430. — General Provisions. § 4300. Definition 497 4301. Property in Bailee 498 4302. Care 498 4303. Extraordinary Care 498 4304. Ordinary Care 498 4305. Bailees' Liens 498 Art, 431. — Hiring. § 4310. In General 498 4311. Bailment for Labor 499 Alt. 432. — Deposits. § 4320. Nature and Kind 500 4321. Obligations of the Depositary . . . 500 4322. Deposit for Keeping 500 4323. Gratuitous Deposit 501 4324. Storage 501 4325. Finding 501 4326. Deposit for Exchange 502 4327. Civil Law 502 4328. Necessary Deposit 504 4329. Sequestration 504 Art. 433. — Loans. § 4330. Consumption or Use 504 4331. Title 505 4332. Care 505 4333. Duties of Borrower 505 4334. Of the Lender 505 4335. Loan for Exchange 505 4336. Loan of Money . ^ 50i; 4337. Deatli of Parties 506 4338. Title as against Creditors .... 506 4339. Civil Law 506 Art. 434. — Carriers. § 4340. In General 508 4341. Obligations of Carriers 508 4342. Carriage of Property 508 4343. Bill of Lading 509 4344. Freightage 509 4345. General Average 510 4316. Carriage of Messages 510 4347. Common Carriers 510 PAGE 4348. Of Persons 511 4349. Of Property 512 4350. Of Messages 513 4351. Louisiana Law 513 4352. Time of Liability 514 4353. Liens 514 4354. Sale of Goods 514 4355. Time of Sale 515 4356. Effect 516 4357. Stoppage in Transitu 516 4358. Effect 516 4359. Bills of Lading 516 4360. Discrimination 517 4361. Insurance 517 Art. 437. — Warehousemen. ' 4370. Definitions 517 4371. Receipts Genuine 517 4372. Wareliouse Receipts 518 4373. Delivery 519 4374. Elevator Receipts 519 4375. Warehouseman's Liens 519 4376. Storage a Bailment 520 4377. Agency 520 4378. Warehouseman's Liability .... 520 Art. 438. — Factors and Consignees. 4380. Shipper deemed Owner 520 4381. Consignee deemed Owner .... 520 4382. Precedent Debts 521 4383. Rights of Owner 521 4384. Duties of Factors 521 4385. Agricultural Produce 522 4386. General Regulations 522 4387. Lien 522 4388. General Principles 522 Art. 439. — Innkeepers. 4390. Definitions 523 4391. Liability 523 4392. Liability, Relief from 523 4393. Lien . ". 524 4394. Duties 525 fi'ljap. III. — ^Transfers anli 3liens. Art. 450. — Gifts. 4500. General Principles 525 4501. Delivery 525 4502. Revocation 525 4503. Gifts by Insolvents 525 4504. Gifts by Minors, etc 526 4505. Presumption of Gift 526 4506. Deeds 526 4507. Seals 526 4508. Record 526 Art. 451. — Civil Law of Donations inter Vivos. 4510. Note 527 4511. General Dispositions 527 4512. Capacity 527 4513. Dispositions Reprobated .... 527 XXXIV CONTENTS. PAGE 4514. Donations inter Vivos 5-7 4515. Form of Donation 5-8 4516. Exception to Rule of Irrevocability . 529 Art. 452. — Pledges. § 4.520. Definitions 530 4521. General Principles o'-iO 4522. Rights of Pleilgee 5.31 4523. Duties of Pledgee 531 4524. Sale 532 452.J. Surplus Proceeds 532 4520. Civil Law of Pledge 5o2 4527. Of Pawn 533 Art. 453. — Chattel Mortgages. § 4.530. Record 535 4531. Time of Record 535 4.532. Place 536 4533. Form, Acknowledgment, and Signa- ture 536 4534. AtKdavit 537 4-535. Duration 537 45.1f,. Payment of Debt 537 45;;7. .Method of Foreclosure 537 4.53::^. Sale 5-38 4530. Manner of Sale 538 4-540. Redemption 538 4-511. Dischar^'e 538 4-542. What May be Mortgaged .... 539 4-543. Sale by .Mortgagor 539 4-541. Assignment 540 4.54-5. Illegal Consideration 540 4540. Special Cases 540 4547. Proof of Fraud 540 Art. 455. — Conditional Sales. § 45-50. General Principles 540 4551. Riglit to Redeem 540 4.J.52. Statute of Frauds 540 4553. Record 540 45-54. Foreclosure 541 455<5. Removal 541 Art. 456, — Sales. § 45''i0. General Principles 541 45t')l. Agreements for Sale 541 45<52. Who .May Sell 542 4-503. What May be Sold 542 45*>4. Form of Contract 543 4-')t)5. How the Contract is Completed . . 543 4-V)tJ. Ri^ilits and Duties of the Seller . . 543 4.507. Delivery 54 4 4-'>t',8. At Whose Risk 545 4-')0!). Warranty 540 4570. In Ca.se of Eviction 547 4571. nroa(!h of Warranty 547 4.572. or the Buyer. . 540 457.3. Lien 5 49 4-')74. Consideration 5-")0 4575. Payment . fj.jO 4-576. Stoppajte in Transitu 550 4-577. Entire and Divisible Contracts . . 551 PAGE 4578. Void Sales 651 4579. Bill of Sale 551 4580. Record 651 4581. Barter 651 4582. Auctions 552 4583. Assignment of Rights and Credits . 5-53 4584. Of Giving in Payment 553 4585. Dissolution, etc 554 4586. Power and Right of Redemption . . 554 4587. Rescission 555 Art. 459. — Fraudulent Sales. § 4590. What is Fraud 5-56 4591. Frauds upon Creditors ..'... 556 4592. Sales of Land to Defraud Purchasers 557 4593. Revocable Conveyances ..... 558 4594. Conveyances in Trust for the Grantor 558 4595. Con veyances in Trust for the Creditors 559 4-596. Assignment 559 4597. Conveyances of Personalty .... 559 4598. General Provisions 559 4599. Sales in Fraud of Creditors . . . 560 4600. Public Officers 500 4601. Record 560 4602. Definitions 560 Art. 462. — Liens. § 4620. Definition 561 4621. Creation 561 4622. Effect 561 4623. Priority 561 4624. Order of Resort 662 4625. Redemption 662 4626. Extinction 662 4627. List of Liens 662 4628. Rank 563 4629. Remedy 563 4630. Limitation 563 4631. Assignment 563 Art. 464. — Special Liens. § 4640. Laborers 563 4641. Artisans 564 4642. Graziers' 564 4643. Ships 564 4644. Louisiana Law 566 464.5. Duration 507 4646. Enforcement 567 4647. Release of Lien 568 4648. Sale 568 4640. Further Liability 568 4650. Lien on Freight 668 4651. Producers' Liens 568 Art. 466. — Civil Law of Privileges. § 4660. General Provisions 668 4661. Several Kinds 668 4662. On Movables 569 4663. General Privileges 669 4(!64. Of Servants 669 466,5. On Supplies 669 4606. Clerks and Wives 669 4667. Particular Movables 609 CONTENTS. XXXV Art.467. — Bottomry and Respondentia PAGE § 4670. Bottomry 570 4671. Eespondentia 571 ©Ijap. IV. — ©£ E3Urittcn ©ijUflatfon.?. Art. 470. — Negotiable Papc. § 4700. Definitions 571 4701. Negotiability of Notes, etc 573 4702. Action by Indorsee 573 4703. Limitations 574 4704. Lost Bills 574 4705. Notes to Order of Maker, etc. . . . 574 4706. Want of Consideration 574 4707. Patent Rights 574 4708. Forged BiUs 575 4709. Usury and Fraud 575 Art. 471. — Of the Indorsement. § 4710. General Principles 575 4711. Warranty 575 4712. In Blank 576 4713. Anomalous Indorsement .... 576 4714. After Maturity 576 4715. Payment 577 Art. 472. — Acceptance, Payment, and Protest. § 4720. Form of Acceptance 577 4721. Promise to Accept 578 4722. Time of Acceptance 578 4723. Presentment and Demand .... 578 4724. Foreign Bills 580 4725. Apparent Maturity 580 4726. Days of Grace 581 4727. Holidays 581 4728. Protest 583 4729. Form of Protest 585 4730. Manner of Notice 585 4731. Protest, etc., Abolished 586 4732. Acceptance for Honor, etc. . . . 586 4733. Demand Notes 587 4734. Death of Parties 587 4735. Bill of Exchange is Payment . . . 687 Art. 474. — Of the Parties. § 4740. Who May Sue 588 4741. Who May be Sued 588 4742. Liability of the Drawer 588 4743. Of the Indorser 588 4744. Of the Holder 589 4745. Holder for Value 590 4746. Title of Holder 590 Art. 475. — Damages. 4750. When Allowed .... ... 590 4751. To Whom Liable . . . ... 591 4752. Interest and Costs . . . ... 591 4753. Damages ... 592 4754. E.xchange . . . 593 4755. Special Provisions . . . ... 593 Art. 476. — Stocks and Bonds. PAGE § 4760. General Principles 593 4761. Stock-jobbing 593 4762. Futures 593 Art. 477. — Letters of Credit. § 4770. Definitions and General Principles . 594 ©fjap. V. — Entcvest, IHoncw, nnti SlLsurn. Art. 480. — Money. § 4800. Note 594 4801. Money of Account 594 4802. Lawful Money 595 4803. Specie Payments 595 Art. 481. — Interest. § 4810. Definition 595 4811. Legal Rate 595 4812. Contract Rate 596 4813. Bond Rate 596 4814. Payment in Advance 596 4815. Insurance and Taxes 596 4816. Compound Interest 59S 4817. Bank Discounts 596 4818. Commission Merchants 597 4819. Other Contracts Specially Exempted 597 4820. Foreign Rates 597 4821. Lex Loci 597 4822. Lex Fori . ' 597 4823. Civil Law 597 Art. 483. — Usury. § 48.30. Definition £98 4831. Usury Laws 598 4832. Penalty 598 4833. Recovery Back 599 4834. State Suits 599 4835. Defence of Usury 599 4836. Assignees 599 4837. Back Interest 599 Art. 484. — Contracts Bearing Interest. § 4840. Judgments and Decrees 600 4841. Verdicts 600 4842. Interest as Damages 600 4843. Other Contracts 600 4844. On Instalments 601 4845. After Maturity 601 Art. 485. — Time and Payment, § 4850. Computation of Time 601 4851. "Per Annum" 602 4852. Leap Year 602 4853. Day, Week, etc 602 Art. 486. — Weights and Measures. § 4860. Citations ' . . 602 4861. The Standards 602 4862. Special Variations, etc 602 4803. Particular Commodities 603 XXXVl CONTEXTS. DIVISION IL — ABNORMAL LAW. Title L — Conteact Relations. €l)ap. I. — Debtor snXi ffrcTiftor. Art. 500. — General Principles, PAGE § 5000. Definitions 605 5001. Riglits of Debtors 605 5002. Rights of Creditors 605 5003. Equitable Assets 605 5004. Two Remedies 605 5005. Appropriation of Payments . . . 605 5006. Fraudulent Removals 605 5007. Civil Law 60G Art. 501. — Joint Debtors. § 5010. Ri,!,'lit8 of Creditors 608 5011. Of Debtors 608 5012. Payment . 008 5013. Release 608 5014. Joint Obligations 008 5015. Suits 609 5016. Contribution 009 5017. Limitation 009 6018. Louisiana Law 609 Cl)np. IL — 33rincipal antr Surety, Art. 510. — General Principles. § 5100. Definitions 610 5101. ()bli{;ation of the Surety .... Oil 6102. Release of Surety Oil 6103. Release by Novation 611 5104. By Negligence of the Creditor . . 611 5105. Suit by the Creditor ...... 611 5106. E.xecution 612 5107. Louisiana Law 612 5108. Effect of Suretyship as between Creditor and Surety 013 Art. 512. — Rights of Sureties against Principals. § 5120. Payment by the Surety 613 6121. Subrogation 614 5122. Teniler by Surety 614 5123. Limitations 614 5124. Suits against the Principal .... 614 5125. Effect of Suretyship as between Debtor and Surety 015 Art. 514. — Rights of Sureties among Themselves. § 5140. Contribution 015 5141. Process 615 5142. I"ffi. * Such offences are tried by information, in these states ; and, by implication, so in all the others. § 129. Grand Juries. In some states the Constitution gives the legislature authority to make laws dispensing with a grand jury in any case: Ind. C. 7,17; HI. C. 2,8; lo. C. Amt. 3; Neb. C. 1,10; Ore. C. 7,18; Col. C. 2,23. RIGHTS AT TRIAL. 27 And providing otlier process in criminal cases : Ala., Miss. Thus, in Nebraska, the legislature may provide for holding persons to answer for criminal offences on the information of a public prosecutor. By the Constitution of three, a grand jury shall consist of twelve men, any nine of whom may concur to find an indictment or ti'ue bill : Mo. C. 2,28 ; Tex. C. 5,13 ; Col. In Oregon, of seven men of whom five may so concur. In Iowa, of any number from five to fifteen. Art. 13. Rights at Trial. § 130. Rights to Law. (a) In nearly all states, the Constitution provides that no person can be deprived of his life, liberty, or property, except (1) by due process of law : Ct. C. 1,9 ; N.Y. C. 1,6 ; 111. C. 2,2 ; Mich. 'c. 6,32 ; lo. C. 1,9 Minn. C. 1,7 ; Neb. C. 1,3 ; KC. C. 1,17 ; Mo. C. 2,30; Ark. C. 2,8 ; Tex. C. 1,19 Cah C. 1,13; Nev. C. 1,8; Col. C. 2,25 ; Ga. C. 1,1,3; Ala. C. 1,7; Miss. C. 1,2 Fla. C. Declu. of Ets. 8 ; La. C. 6 ; KM.* 1851, July 12, § 15 ; Ariz.* Bill of Ets 14 ; or (2) by the law of the land or the judgment of his peers : " N.H. C. 1,15 Mass. C. 1,12; Me. C. 1,6; Vt. Cf. 1,10; R.I. C. 1,10; Pa. C. 1,9 ; Md. Decln. of Ets. 23 ; Del. C. 1,7; Va. C. 1,10 ; W.Va. C. 3,10 ; Ky. C. 13,12 ; Tenu. C. 1,8 ; S.C. C. 1,14 ; N.M.* 95,1. So, in Connecticut and South Carolina, no person shall be arrested, detained, and punished ; or, in Alabama, accused, arrested, or detained, except in cases clearly ascertained by law : Ct. C. 1,10 ; Ala. C. 1,8 ; -S.C. And according to the forms by law prescribed : Ala. (B) And in several states, no person shall be disfranchised or deprived of any rights and privileges as a citizen, unless as provided in (A) respectively : N.H. ; Mass. ; Me. ; KY.» C. 1,1 ; Minn.* C. 1,2 ; Md. ; N.C. ; Tenn. ; Ark.' C. 2,21 ; Tex. ; S.C. ; N.M.*'= Notes. — " This provision is founded on Magna Cliarta, C. 29. Compare also §§ 70,72. * As provided in A (2). <^ As provided in A (1). § 131. Jury Trial." (a) In most states, the Constitution provides that all per- sons so accused shall have a speedy public trial by an impartial jury : Me. C. 1,6 ; Vt. C. 1,10 ; E.I. C. 1,10 ; KJ. C. 1,8 ; Pa. C. 1,9 ; 0. C. 1,10 ; Ind. C. 1,13 111. C. 2,9 ; Mich. C. 6,28 ; lo. C. 1,10 ; Minn. C. 1,6 : Kan. C. Bill of Ets. 10 Neb. C. 1,11 ; Md. Declii. of Ets. 21 ; Del. C. 1,7 ; Va. C. 1,10 ; Mo. C. 2,22 Ark. C. 2,10; Tex. C. 1,10; Ore. C. 1,11; Col. C. 2,16; S.C. C. 1,13; Ga. C. 1,1,5 ; La. C. 7 ; N.M.* 95,1 ; 1851, July 12, § 8. So, in several, all persons prosecuted by indictment or information : Ct. C. 1,9 ; Wis. C. 1,7 ; Ky. C. 13,12 ; Miss. C. 1,7 ; N.M.* 50,7. And in two states, all persons prosecuted by indictment (or presentment) : Tenn. C. 1,9 ; Ala. C. 1,7 ; Wash.* 7G6. In several, the provision is simply that the accused shall have a speedy and public trial : Cal. C. 1,13 ; Dak.* C. Cr. P. 11 ; Ida.* Cr. Pr. 10 ; Mon.* Cr. Pr. 9 ; Uta.* Cr. Pr. 7 ; Ariz.* 426. (B) And in three, the Constitution provides that (except as below) the legislature shall make no law subjecting a person to capital [or infamous, in Mass.] punishment without trial by jury : KH. C. 1,16 ; Mass. C. 1,12 ; S.C. C. 1,14. (C) In two, that the right to trial by jury shall remain inviolate in criminal cases : N.Y. C. 1,2 ; Col. C. 2,23 ; Fla. C. Decln. of Ets. 3. See also § 72, for other states. (D) In several, that no person shall be convicted of any crime but by the verdict of a lawful jury in open court : W.Va. C. 3,14 ; N.C. C. 1,13 ; Wash.* 767 ; Dak.* C. Cr. P. 14 ; Ida.* Cr. Pr. 13 ; Mon.* Cr. Pr. 8 ; Uta.* Cr. Pr. 10 ; N.M.* 50,8 ; Ariz.* 429. (Except upon confession, demurrer, etc. : Wash.,* Dak.,* Ida.,* Uta.,* Mon.,* Ariz.*) Exceptions.'' In two, the legislature may provide other means of trial (1) for offences not infamous.*^ See above, B. So, in two others, for petty offences: Del. C 6,15; N.C. So, 28 BILL OF RIGHTS: CRIMINAL. in two others, all offences less than felony, and in which the penalty does not exceed $100 or thirty days' imprisonment, shall he tried summarily before a justice of the peace: lo. C. 1,11 ; S.C. C. 1,19. So, in Tennessee, no fine of more than $50 shall he imposed except by a jury : Tenn. C. 6,14 But in all such cases of trial without a jury there must be a right of appeal : lu., N.C., S.C. (2) Laws may be made, in two states, for the goverumeut of the army and navy, without providing for trial by jury : ''N.H., Mass. Waiver. The Constitution of California provides that a jury may he waived by consent of both parties in all criminal cases not amounting to felony: Cal. C. i,7. So, in New Mexico, the accused may in all cases waive jury trial: 1851,* July 12, § 8. Notes. — ° For civil cases, see Art. 7. ^ In other states § 131 does not apply, probably, to cases of martial law ; see § 128. <^ See Glossary. See also § 132. § 132. Juries." By the Constitution of Florida the number of the jury may in all cases be fixed by tlie legislature : Fla. C. 6,12. So, in four other states, in courts not of record : Mich. C. 6,28; lo. C. 1,9 ; Mo. C. 2,28 ; Col. C. 2,23. So, in Louisiana, in cases not punish- able by hard labor or death : La. C. 7. In Texas, juries in the county court consist of six men: Tex. C 5,17. And in California, the parties m^ay agree on a jury less than twelve in number, in cases of misdemeanor: Cal. C. 1,7. But in two, the usual number (twelve) is by the Constitutinn declared indispensable: Me. C. 1,7; W.Va. C. 3,11;. The Verdict of the jury, by the Coustitutious of several states, must be unanimous to convict : Me. C. 1,7; Vt. C. 1,10; Md. Decln. of Rts. 21 ; Va. C. 1,10; N.C. C. 1,13. But in Texas, nine members of the jury may concur to render a verdict in cases not amounting to felony: Tex. C. 5,13. By the Constitution of Louisiana, the accused is given the right to challenge peremptorily a number of jurors to be fixed by statute : La. C. 8. And in four states the Constitution provides that in all criminal cases whatever * the jury shall have the right to determine the law and the facts: Ind. C. 1,19; Md. C. 15,5; Ore. C. 1,16; La. C 108. But iu two, under the direction of the court, as to the law : Ore., La. And, iu Oregon, subject to the right of new trial, as iu civil cases. Notes. ^" See also § 73 for juries in civil suits. See § 150, note ". * For libel, see § 61, E. § 133. Venue, (a) The Constitutions of many states provide that the jury shall be of the couutv or district where the alleged offence was committed : N.H. C. 1,17; 0. C. 1,10; Ind. C. 1,13; 111. C. 2,9; Wis. C. 1,7; Minn. C. 1,6; Kan. C. Bill of Rts. 10 ; Neb. C. 1,11 ; W.Va. C. 3,14 ; Tenn. C. 1,9 ; Mo. C. 2,22 ; Ark. C. 2,10; Ore. C. 1,11; Col. C. 2,16; Miss. C. 1,7; La. C. 7; Wash.* 780; Mon.* Cr. Pr. 30; Wy.* Cr. C. 115; KM.* 50,7. And in two, that this county, etc., shall have been previously ascertained by law : Wis., Minn., N.M.* So, in several, criminal offences must be tried by a jury of the vicinage : N.H. ; Mass. C. 1,13 ; Me. C. 1,6 ; Pa. C. 1,9 ; Md. C. 1,20 ; Va. C. 1,10 ; Ky. C. 1.3,12. (B) Change of. In several, the power to change the venue is vested in the courts : Pa." C. 3,1^3 : Md. C. 4,8 ; Del. C. 1,9 ; W.Va. ; Dak.* C. Cr. P. 285 ; Mon.* Cr. Pr. 225 ; Wy. *; Uta.* Cr. Pr. 210; Ariz.* 11,285. It is to be exercised in such manner as the legislature provide : Pa. ;° Ark. ; Tex." C. 3,45 ; Col." C. 5,37 ; Ga." C. 6,17,1 ; Ala." C. 4,36. In one, change of venue in criminal cases can only he directed by the legislature, on report of the judges of the Superior Court, in ca.'^cs of insurrection : N.H. The Constitutions of two states specially trive to the legislature power to provide for change of venue : Ky. C. 2,38 ; La." C. l.'iS.' In two others, the Constitution specifics that the legis- lature shall so provide in cases where !in impartial trial cannot be had iu the county where the crime was couunitted : S.C." C 5,2; Miss. C. 12,4. RIGHTS AT TRIAL. 29 The legislatures are frequently forbidden to enact special or local laws for the change of venue in civil or criminal cases. See § 395. In Vermont no person can be transported out of the state for trial for any offence committed within it : Vt. C. 1,21. Note. — " In civil or criminal cases. § 134. Counsel, (a) The Constitutions of all the states provide either (1) that every person accused may defend by himself and counsel : N.H. C. 1 15 • Me. C. 1,6 ; Vt. C. 1,10 ; RI. C. 1,10 ; Ct. C. 1,9 ; N.Y. C. 1,6 ; Pa. C. 1,9 ; 6. c' 1,10 ; Ind. C. 1.13 ; 111. C. 2,9 ; Wis. C. 1,7 ; Del. C. 1,7 ; Ky. C. 13,12 ; Tenn. C. 1,9; Mo. C. 2,22; Ark. C. 2,10 ; Tex. C. 1,10 ; Cal. C. 1,13 ; Ore. C. 1,11 ; Nev. C. 1,8 ; Col. C. 2,16 ; S.C. C. 1,13 ; Ga. C. 1,1,4 ; Ala. C. 1,7 ; Miss. C. 1,7 ; Fla. C. Decln. of Rts. 8 ; Dak.* C. Cr. R 11 ; KM.* 95,1 ; 1851, July 12, § 8 ; Ariz.* Bill of Ets. 14 ; or (2) that he may have the assistance of counsel in his de- fence : N.J. C. 1,8; Mich." C. 6,28 ; lo. C. 1,10 ; Minn. C. 1,6 ; W.Va. C. 3,14; KC. C. 1,11 ; La. C. 8 ; Mon.* Cr. Pr. 9 ; or (3) that he may be allowed counsel \ Md. Decln. of Ets. 21 ; N.C. C. 1,11 ; Ga. C. 1,1,5. Or (B), by the Constitutions of many states, that he may be heard by himself or counsel: Mass. C. 1,12; Mich. C. 6,24; Wis." C. 7,20; Kan. C. Bill of Ets. 10 ; Neb. C. 1,11 ; Nev. C. 1,8 ; Ala." C. 1,11 : Miss." C. 1,30; Wash.* 765 ; Ida.* Cr. Pr. 10 ; Uta.* Cr. Pr. 7 ; N.M.* 50,7 ; Ariz.* 426. In several the above principle, as particularized respectively, extends to any suitor in a court of law, civil or criminal : Mich. ; Wis. ; Nev. ; Ga.; Ala. C. 1,11 ; Miss.; Fla.; Dak.*; Ida.* Note. — "In civil cases ; see below. § 135. "Witnesses, (a) By the Constitutions of most of the states every per- son accused is entitled either (1) to enforce by compulsory process the attendance of witnesses [in his favor] : Me. C. 1,6; Vt. C. 1,10 ; Ct. C. 1,9; N.J. C. 1,8 ; Pa. C. 1,9 ; 0. C. 1,10 ; Ind. C. 1,13 ; 111. C. 2,9 ; Mich. C. 6,28 ; Wis. C. 1,7 ; lo. C. 1,10 ; Minn. C. 1,6 ; Kan. C. Bill of Ets. 10 ; Neb. C. 1,11 ; Md. C. Decln. of Ets. 21 ; Del. C. 1,7 ; W.Va. C. 3,14 ; Ky. C. 13,12 ; Tenn. C. 1,9 ; Mo. C. 2,22 ; Ark. C. 2,10 ; Tex. C. 1,10 ; Cal. C. 1,13 ; Ore. C. 1,11 ; Col. C. 2,16 ; Ga. C. 1,1,5 ; Ala. C. 1,7 ; Miss. C. 1,7 ; La. C. 8 ; Wash.* 766 ; Uta.* Cr. Pr. 7 ; N.M.* 50,7 ; 95,1 ; 1851, July 12, § 8; or (2), to call for evidence on his behalf: N.H. C. 1,15; Mass. C. 1,12 ; E.L C. 1,10 ; Va. C. 1,10 ; N.C. C. 1,11 ; S.C. C. 1,13 ; Dak.* C. Cr. P. 11 ; Ida.* Cr. Pr. 10 ; Mon.* Cr. Pr. 9 ; Ariz.* 426. In Maryland it is specially provided that the accused may examine all witnesses under oath. The legi.?lature has power, in two states (except in cases of homicide : Cal.), to provide for the taking of depositions, in the presence of tlie person accused and liis counsel, when there is reason to believe that the witness will not attend at the trial : Cal., Wash.* (B) The Constitutions of most states also provide that the accused shall he confronted with tlie witnesses against him : N.H. ; Mass. ; Me. ; Vt. ; E.L ; Ct. N.J. ; Pa. ; 0. ; Ind. ; 111. ; Mich. ; Wis. ; lo. ; Minn. ; Kan. ; Neb. ; Md. ; Del. Va. ; W.Va. ; N.C. ; Ky. ; Tenn. ; Mo. ; Ark. ; Tex. ; Ore. ; Col. ; S.C. ; Ga. Ala. ; Miss. ; La. ; Wash.* 765 ; Dak.* ; Ida.* ; Mon.* ; Uta.* ; N.M.* 50,7 ; 95,1 ; 1851, July 12, § 8 ; Ariz.* § 136. Criminating Evidence. Ca) The Constitutions of most of the states provide that no person accused shall be compelled to give evidence against him- self: N.H. C. 1,15; Mass. C. 1,12; Me. C. 1,6; Vt. C 1,10; Ct. C. 1,9; N.Y. C. 1,6; Pa. C. 1,9; 0. C. 1,10; Ind. C. 1,14; 111. C. 2,10 ; Mich. C. 6,32; Wis. 30 BILL OF EIGHTS: CRIMINAL. C. 1,8 ; Minn. C. 1,7 ; Kan. C. Bill of Ets. 10 ; Neb. C. 1,12 ; Md. Decln. of Ets. 22 ; Del. C. 1,7 ; Va. C. 1,10 ; W.Va. C. 3,5 ; N.C. C. 1,11 ; Ivy. C. 13,12 ; Tenn. C. 1,9 ; Mo. C. 2,23 ; Ark. C. 2,8 ; Tex. C. 1,10 ; Cal. C. 1,13 ; Ore. C. 1,12 ; Nev. C. 1,8 ; Col. C. 2,18 ; S.C. G. 1,13 ; Ala. C. 1,7 ; Miss. C. 1,7 ; Fla. 0. Decln. of Ets. 8 ; La. C. 6 ; Dak.* C. Cr. P. 13 ; Ida.* Cr. C. 12 ; Cr. Pr. 12 ; Mon.* Cr. Pr. 11 ; Uta.* Cr. Pr. 9 ; N.M.* 95,1 ; 1851, July 12, § 8 ; Ariz.* Bill of Ets. 14. (B) And those of two others, that no person [whether accused or not, it seems] can be compelled to give evidence criminating himself in any court of law: R.I. C 1,13; Ga. C 1,1,6. § 137. Twice in Jeopardy, (a) In most states the general provision is found that no person, for the same offence, can be twice put (1) in jeopardy : N.Y. C. 1,6 ; 0. C. 1,10 ; Ind. C. 1,14 ; 111. C. 2,10 ; Kan. C. Bill of Ets. 10 ; Neb. C. 1,12 Cal. C. 1,13 ; Ore. C. 1,12 ; Nev. C. 1,8 ; Col. C. 2,18 ; Fla. C. Decln. of Ets. 8 Ariz.* Bill of Ets. 14 ; (2) in jeopardy of life or limb : Me. C. 1,8 ; Pa. C. 1,10 Del C. 1,8; Ky. C. 13,14; Tenn. C. 1,10; Ala. C. 1,10; N.M.* 1851, July 12 § 12 ; (3) in jeopardy of life or liberty : W.Va. C. 3,5 ; Ark. C. 2,8 ; Tex. C. 1,14 Ga. G. 1,1,8 ; Miss. C. 1,5 ; La. C. 5 ; (4) in jeopardy of punishment : Wis. C. 1,8 Minn. C. 1,7. But in Colorado it is provided that the accused shall not be deemed to have been in jeopardy if the jury disagree, or the judgment be reversed for eiTor. (B) But in several the provision is that no person shall, after an acquittal," (1) be tried for the same ofience : N.H. C. 1,16 ; R.I. C. 1,7 ; N.J. C. 1,10 ; Mich. C. 6,29; lo. C. 1,12; Tex.; Wash.*" 768; Dak.* « C. Cr. P. 12; Ida.* « Cr. Pr. 11 ; Mon.*« Cr. Pr. 10 ; Uta.*« Cr. Pr. 8; N.M.* 50,9 ; 95,1 ; Ariz.* 427 ; (2) have his life or liberty again put in jeopardy for the same oflfence : Mo. C. 2,23 ; S.C. C. 1,18. But in two it is specified that such acquittal must be upon the merits : Mich., N.M.* Aud in Texas, it must be in a court of competent jurisdiction. In Washington Terri- tory, "by judgment upon the verdict." Exceptions. But in two the person may be tried again on his own motion, after convic- tion : Ga., La. So, in three, in case of mistrial : Mo., Ga., La. Or, in two, if the jury disagree : Mo., Ark. In Washington Territory, he cannot be prosecuted again, notwithstanding a defect in form or substance in the indictment on which the conviction or acquittal took place. But if acf[uitted by reason of variance, or upon exception to the form, or to the substance of the indictment, he may be indicted and tried again, except where the former charge was a capital oflence : Wash.* 709, Note. — " Nor, in the noted states, after a conviction. § 138. Attainder." Most states have a general constitutional provision that the legislature shall pass no bill of attainder : Me. C. 1,11 ; N J. C. 4,7,3 ; Mich. G. 4,43; Wis. G. 1,12; lo. G. 1,21; Minn. C. 1,11; Neb. C. 1,16; Va. G. 5,14; W.Va. C. 3,4; Ark. C. 2,17; Tex. G. 1,16; Gal. G. 1.16; Nev. G. 1,15; S.C. G. 1,21 ; Ga. G. 1,3,2 ; Fla. G. Decln. of Ets. 16 ; N.M.* 1851, July 12, § 14; Ariz.* liill of Ets. 19. In several others, that no person can be attainted of treason or felony by the legislature: Mass. G. 1,25; Vt. C. 2,20; Gt. G. 1,15; Pa. C. 1,18; Md. Decln. oC Ets. 18 ; Ky. G. 13,21 ; Mo. G. 2,13 ; Col. G. 2,9. And so, in one, of treason alone : Ala. C. 1 ,20. Note. — " Compare U.S. C. 1,9. This might be implied in other states from § 128. $ 139. Miscellaneous. The Constitutions of two states forbid the issue of commissions of oyer and Icrininer and gaol delivery: Pa. C. 1,15; Del. C. 1,14. By that of Nebraska the RIGHTS AFTER TRIAL. 31 writ of error is declared a writ of right in all cases of felony : Neb. C. 1,23. So in Wiscon- sin, the writ shall never be prohibited by law : Wis. C. 1,21. In Kentucky, the lesislature are authorized to pass laws regulating writs of error in criminal or penal cases : Ky.'c. 2,39. And also, laws regulating the right of challenge of jurors therein : Ky. Art. 14. Rights after Trial. § 140. Fines and Costs." The Constitutions of all states, except Illinois and Mississippi, provide that excessive fines shall not be imposed : N H C 1 33 • Mass C. 1,26 ; Me. C. 1,9 ; Vt. C. 2,32 ; RI. C. 1,8 ; Ct. C. 1,13 ; N.Y. C. 1,5 ; N J c" 1.15 ; Pa. C. 1,13 ; 0. C. 1,9 ; Ind. C. 1,16 ; Mich. C. 6,31 ; Wis. C. 1,6 ; lo. C. 1,17 ; Minn. C. 1,5 ; Kan. C. Bill of Ets. 9 ; Neb. C. 1,9 ; Md. Decln. of Ets. 25 • Del c' 1,11 ; Va. C. 1,11 ; W.Va. C. 3,5 ; KG. C. 1,14 ; Ky. C. 13.17 ; Tenn. C. 1,16 ; Mo. C. 2,25; Ark. C. 2,9; Tex. C. l,13;.Cal. C. 1,6 ; Ore. C. 1,16; Nev. C. 1,6 ; Col C. 2,20 ; S.C. C. 1,38 ; Ga. C, 1,1,9 ; Ala. C. 1,16 ; Miss. G. 1,8; Fla. C. Decln of Ets. 6 ; La. C. 9 ; KM.* 95,1 ; 1851, July 12, § 11 ; Ariz.* Bill of Ets. 10. Nor, in one, excessive costs : N.G. And in two, that no person shall bo compelled to pay costs except after conviction on final trial : N.C. C. 1,11 ; Ga. C. 1,1,10. So, in Delaware, no costs shall be paid by a person accused, the bill being returned ignoramus, or on acquittal by the jury: Del. C. 7,7. In Texas the legislature may by law require fines and costs in prosecutions for misdemeanors to be discharged by manual labor in default of payment : Tex. C. 1(1,3. Note. — « See U.S. C. Amt. 8. § 141. Punishments." The Constitutions of most states provide (A) that cruel or unusual punishments shall not be inflicted : N.H. C. 1,33 ; Mass. G. 1,26 ; Me. C. 1,9 ; EI. C. 1,8 ; N.Y. C. 1,5 ; N.J. C. 1,15 ; Pa. C. 1,13 ; 0. C. 1,9 ; Ind. G. 1.16 ; Mich. C. 6,31 ; Wis. G. 1,6 ; lo. C. 1,17 ; Minn. C. 1,5-; Kan. G. Bill of Ets. 9 ; Neb. G. 1,9; Md. Decln. of Ets. 16 and 25 ; Del. G. 1,11 ; Va. G. 1,11 ; W.Va. C. 3,5 ; N.G. G. 1,14 ; Ky. G. 13,17 ; Tenn. G. 1,16 ; Mo. G. 2,25 ; Ark. G. 2,9 ; Tex. G. 1,13 ; Gal. G. 1,6 ; Ore. G. 1,16 ; Nev. C. 1,6 ; Col. G. 2,20 ; S.C. G. 1,38 ; Ga. G. 1,1,9 ; Ala. G. 1,16 ; Miss. G. 1,8 ; Fla. Decln. of Ets. 6 ; La. G. 9 ; N.M.* 95,1 ; 1851, July 12, § 11 ; Ariz. * Bill of Ets. 10. (B) In eight, that all punishments and penalties should be proportioned to the offence : N.H. C. 1,18 ; Me. ; R.I. ; Ind. ; 111. C. 2,11 ; Neb. C. 1,15 ; W.Va. ; Ore. (C) And in five, reformation, not vindictive justice, is declared to be the principle of the penal code: N.H. ; Ind. C. 1,18; N.C. C. 11,2; Ore. C. 1,15; S.C. C. 5,3. Further, in three, it is specially declared (1) that sanguinary laws shall not be passed : N.H. ; Me.; Md. C. Decln." of Rts. 16. (2) That whipping or corporal punishment shall not, in two, be inflicted : S.C. C. 1,16; Ga. C. 1,1,7. (3) In one, that no mechanical trade .shall be taught to convicts in the State priscra, except the manufacture of those articles of wliicli the chief supply for home consumption is imported from other states : Mich. C. 18,3. But in three, provision is made by the Constitution for punishment by hard labor : Vt. C. 2,37; N.C. C. 11,1 ; Cal. C. 10,6. In one, the Constitu- tion forbids the letting out of convict labor by contract : Cal. (4) In one, that no citizen shall be outlawed : Tex. C 1,20. (5) In nine, that banishment from the state or transportation shall not be allowed as a punishment for crime : 0. C. 1,12 ; III. ; Kan. C. Bill of Rts. 12 ; Neb. ; W.Va. ; Ark. C. 2,21 ; Tex. ; Ga. C. 1,1,7 ; Ala. C. 1,31. (6) In one, that the gaols shall be constructed with regard to the health of the prisoners : Del. So, in Tennessee, that the erection of secure and comfortable prisons, and the humane treatment of prisoners, shall be provided for: Tenn. C. 1,32. In North Carolina, the Con- 32 BILL OF RIGHTS: CRIMINAL. stitution provides that death, imprisonment, fines, removal from office, and disqualification for office, shall be the only punishments known to the laws; convict labor may be employed on public works, or farmed out ; but no convict sentenced for murder, manslaughter, rape, or arson shall be farmed out ; murder, arson, burglary, and rape may be made punishable by death : N.C. C. 11,1,2. In Vermont, that punishment for crimes not capital should be by hard labor : Vt. C. 2,37. No person can be punished for an offence who has not been duly convicted : Wash.* 770 ; Dak.* C. Cr. P. 6; P. C. 8 ; Ida.* Cr. Pr. 5; Uta.* Cr. Pr. 2 ; N.M.* 50,10. Note. — ° See U.S. C. Amt. 8. § 142. Ex Post Facto Laws." These are, in most of the states, forbidden by the Constitution: N.H. C. 1,23; Mass. C. 1,24; Me. C. 1,11 ; E.I. C. 1,12 ; KJ. C. 4,7,3; Pa. C. 1,17; O. C. 2,28; Ind. C. 1,24; 111. C. 2,14; Mich. C. 4,43; Wis. C. 1,12; lo. C. 1,21; Minn. C. 1,11; Neb. C. 1,16; Md. C. Decln. of Ets. 17 ; Va. C. 5,14 ; W.Va. C. 3,4 ; KC. C. 1,32 ; Ky. C. 13,20 ; Tenn. C. 1,11 ; Mo. C. 2,15 ; Ark. C. 2,17 ; Tex. C. 1,16 ; Cal. C. 1,16 ; Ore. C. 1,21 ; Nev. C. 1,15 ; Col. C. 2,11 ; S.C. C. 1,21 ; Ga. C. 1,3,2 ; Ala. C. 1,23; Miss. C 1,9 ; Fla. C. Decln. of lits. 16 ; La. C. 155 ; KM.* 1851, July 12, § 14 ; Ariz.* Bill of Rts. 19. So, in two, no person can be punished but by virtue of a law ah'eady established or promulgated prior to the offence : S.C. C. 1,14 ; Ala. C. 1,8. Note. — " The word e:c post facto is liere used as the equivalent of retroactive and retrospective; and the law is here applied only to criminal offences. For civil laws of a similar nature, see §§ 392,393, Laws impairing the obligations of contracts. For statutes, see § 1044. § 143. Corruption of Blood." The Constitutions of most states provide that no conviction shall work corruption of blood or forfeiture of estate : Me, C. 1,11 ; Ct. C. 9,4; Pa. C. 1,19; 0. C. 1,12; Ind. C. 1,30; 111. C. 2,11 ; Wis. C. 1,12; Minn. C. 1,11 ; Kan. C. Bill of Ets. 12; Neb. C. 1,15; Md. Decln. of Rts. 27; Del. C. 1,15; W.Va. C. 3,18; N.C. C. 4,5 ; Ky. C. 13,22; Tenn. C. 1,12; Mo. C. 2,13 ; Ark. C. 2,17 ; Tex. C. 1,21 ; Ore. C. 1,25 ; CoL C. 2,9 ; S.C. C. 1,21 ; Ga. C. 1,2,3 ; Ala. C. 1,20 ; Dak.* P. C. 766. But in three, it seems that there may be forfeiture of estate during the life of the offender : Pa., Del., Ky. Note. — » Compare U.S. C. 3,3. For statutes, see § 1162. § 144. Suicides. In three, the Constitution declares that the estates of suicides are not forfeit : >s'.H. C. 2,89; Vt. C. 2,38 : Pa. C. 1,19. And in eight that such estates descend as in cases of natural death : N.H. ; Vt. ; Pa. ; Del. C. 1,15 ; Ky. C. 13,23; Tenn. C. 1,12 ; Mo. C. 2,13 ; Tex. C. 1,21 ; Cob C. 2,9. See § 11G2 and § L50, note °. § 145. Oeodands are in seven states abolished by the Constitution : N.H. C. 2,89; Vt. C. 2,38; Pa. C. 1,19; Del. C. 1,1,.5; Ky. C. 13,23; Tenn. C. 1,12; Mo. C. 2,13. Sec §1162. § 146. Appeals. (See Art. 65.) By the Constitution of Texas, the State has no right of appeal in (;riiniiial cases: Tex. C. .5,26. Art. 15. Special Provisions concerning Criminal Offences. § 150 Treason " is by the Constitutions of most of tlie states declared to consist only in levying war against the state, adhering to its enemies, and giving them aid and comfort: Me. C. 1,12; Ct. C. 9,4; N.J. C. 1,14; Ind. C. 1,28-29; Mich. C. 6,30 ; Wis. C. 1,10; To. C. 1,16 ; Minn. C. 1,9 ; Kan. C. Bill of Ets. 13 ; SPECIAL PROVISIONS CONCERNING CRIMINAL OFFENCES. 33 Neb. C. 1,14; Del. C. 5,3; W.Va. C. 2,6; KC. C. 4,5 ; Ky. C. 8,2 ; Mo. C. 2,13 ; Ark. C. 2,14; Tex. C. 1,22; Cal. C. 1,20; Ore. C. 1,24; Nev. C. 1,19; Col. c' 2,9 ; Ga. C. 1,2,2 ; Ala. C. 1,19 ; Miss. C. 1,26 ; Fla. C. Decln. of Ets. 20 ; La. C. 151. Aud in all the above states there must be two witnesses to the same overt act, in order to convict, or a confession in oj)en court. Note. — " Contrary to the usual rule of Part I. (§§ 1 aud 3), the correspondiug statutory pro- visions of the territories are not inserted in this article. § 151. Duelling." By the Constitutions of many states duelling is made a cause of disfranchisement and disqualification to hold office. See §§ 223,254,257. In five, it is made, by the Constitution, a criminal offence :° Ky. C. 8,20; Tenn. C. 9,3; Ark. C. 19,2 a. C. 2,4,2; Ala. C. 4,47. Note. — <» See § 150, note ". § 152. Bribery" of an office-holder, whether accomplished or attempted, is made a felony (a) in the person giving or offering the bribe, by the Constitution of ten states : KY. C. 15,1 and 2 ; Pa. C. 3,30 ; Md. C. 3,50 ; W.Va. C. 6,45 ; Ark. C. 5,35 ; Tex. C. 16,41 ; Col. C. 5,41 and 42 ; Ala. C. 4,41 and 42 ; Fla. ;* La.*C. 173. (B) And in several, it is felony in the office-holder receiving or offering to receive the bribe : N.Y., Md., W.Va., Ark., Tex., Nov., La. So, of a member of the legislature (1) bribed: N.Y. ; Pa. C. 3,29-31; Md. ; W.Va.; Tex.; Cab C. 4,35; Col. C. 12,6; Ala. C. 4,40 ; La. Or (2) offering a bribe or seeking to bribe: Ala. (C) Bribery at elections is, by the Constitutions of several states, made a criminal offence in both parties : Tenn. C. 10,3 ; Ark. C. 3,6 ; Nev. C. 4,10 ; Fla. C. 4,9 ; La. So, in one, fraud; or other wilful aud corrupt violation of election laws: Ark. And in many states bribery is cause of disfranchisement or disqualification for office. See ^ 223,255. Notes. — <• See § 150, note ". * In these states, it is made a penal offence. § 153. Lobbying is declared a felony by the Constitutions of two states : Cal. C. 4,35 ; Ga. C. 1,2,5. Definition. Lobbying is in California defined to be the seeking to influence the vote of a member of the legislature by bribery, promise of reward, intimidation, or other dishonest means. Evidence." By the Constitutions of several, any person may be compelled to testify in any iuvcstigation or proceeding to establish bribery or lobbying ; but such testimony cannot be afterwards used against him, except to prove perjury: N.Y. C. 15,2; Pa. C. 3,32; Cal.; Md. C. 3,50; W.Va. C. 6,45 ; La. C. 174. See also ^ 239. And the person so testifying is exempted from punishment for his own offence : Md., W.Va. Note. — » See § 150, note <•. § 154. Corrupt Legislation," etc. By the Constitutions of four, (A) no state officer or member of the legislature shall directly or indirectly receive a fee or be engaged as counsel, agent, or attorney (1) in the prosecution of any claim against the state : N.H. C. 2,7 ; Vt. C. 2,19 ; R.L C. 4,4 ; Ore. C. 15,7. (2) Or in advocating any bill or measure : Vt. (B) So, in five, no member of the legislature can be interested directly or indirectly in any contract with the state or a county thereof authorized by a law passed (1) during his term : 111. C. 4,15 ; Mich. C. 4,18 ; Neb. C. 3,13 ; W.Va. C. 6,15 ; Tex. C. 3,18. Or (2) within one year thereafter : 111., Mich., Neb. 3 34 BILL OF EIGHTS: CRIMINAL. And in two, a member who has a personal or private interest in any measure or bill shall disclose the same to the house and not vote thereon : Pa. C. 3,33 ; Ala. C. 4,43. So, in Texas, the goveruor is forbidden to receive any compensation or promise thereof for any service rendered or perfonned while goveruor, or to be rendered thereafter: Tex. C. 4,6. The Constitution of Colorado provides that any member of the legislature who shall give, oflfer, or promise his vote in favor of or against any measure, in consideration that any other member shall give or promise his vote on another measure, shall be guilty of sohcitation of bribery, or bribery [if the thing be accomplished] ; and such member shall be expelled, and not thereafter be eligible for the legislature, and be hable to such further penalty as may be prescribed by law: Col. C. 5,40. Note. — <» See § 150, note ". § 155. Barratry. The Constitution of Texas provides that the legislature shall provide by law for defining and punishing bareatry : Tex. C. 16,29. § 156. Gambling is by the Constitution of Louisiana declared to be a vice : La. C 172. § 157." Embezzlement of public funds or defalcation in public office or trust is, in four, declared a felony by the Constitution : Cal. C. 4,21 ; Nev. C. 4,10 ; S.C. C. 9,15 ; ria. C. 4,9. So, in one, misappropriation of the state or school funds: Minn. C. 9,12. In Texas it is a penal offence to borrow, or divert from its purpose, any state fund : Tex. C. 8,7. So, in several, for a public officer to make a profit out of public money, or to use it for any purpose not authorized by law : Pa. C. 9,14 ; Ark. C. 16,3 ; Mo. C. 10,17 ; Cab C. 11,17 ; CoL C. 10,13; Ga. C. 5,2,5 ; 7,9,1. Note. — <» .See § 150, note ". § 158. "War Exemption. By the Constitutions of three states, no person shall be prosecuted in any civil or criminal action for any act done by him during the war of secession under orders, or in pursuance of military authority vested in him by the United States, the Confederate States, or the State : W.Va. C. 8,35 ; Mo. C. 14,2 ; Fla. C. Sched. § 159. Felony." The Constitution of Colorado defines felony to mean any criminal offence punishable with death or imprisonment in the penitentiary : Col. C. 18,4. Note. — ° See Glossary. Art. 16. Pardons. § 160. Pardon Power." (a) By the Constitutions of most states, the governor has power to grant pardons and commutations of sentence after conviction : Vt.* C. 2,11 ; Amt. 8 ; KY.^ C. 4,5 ; 0.*^ C. 3,11 ; lud.^ C. 5,17 ; 111.^ C. 5,1.3 ; Mich.' C. 5,11 ; Wis.' C. 5,6 ; lo.' C. 4,16 ; Minn.* C. 5,4 ; Kan.*' ' C. 1,7 ; Neb.* C. 5,13 ; Md.* C. 2,20 ; Del.' C. 3,9 ; Va. C. 4,5 ; W.Va. C. 7,11 ; KC C. 3,6 ; Ky.* C. 3,10 ; Tenn.* C. 3,6 ; Mo.' C. 5,8 ; Ark.' C. 6,18 ; Tex. C. 4,11 ; CaP C. 7,1 ; Ore.' C. 5,14 ; Col.' C. 4,7 ; S.C* C. 3,11 ; Ga.' C. 5,1,12 ; Ala. C. 5,12 ; Miss.* C. 5,10 ; Wash.* 1136 ; Dak.*' C. Cr. P. 545 ; Ariz.*' 1093. And so in all the territories, by U.S. E. S. 1841. (B) In three, the governor may grant pardons as above by and with the advice of the council : N.H.* C. 2,52 ; Mass.* C. 2,2,1,8 ; Me. C. 5,1,11. (C) And in two, power to pardon, as above, is vested in the governor, judges of the PARDONS. 35 Supreme Court, and attorney-general, or a majority of them, of which the governor must be one : Nev.'' C. 5,14 ; Fla.<^ C. 5,12. (D) So, in one, the governor, by and with the consent of the senate : R.I.'' C. Amt. 2. (E) And in two others, a Court of Pardons, consisting of (1) the governor, judges of the Court of Appeals, and the chancellor, or a majority of them, of which the governor must be one: N.J.** C. 5,10; Pardons* 1-5. (2) Such Board of Pardons consists of the governor, a judge of the Supreme Court of Errors, and four persons appointed by the legislature, one of whom must be a physician, and such board must be unanimous to grant a pardon : Ct.* 1883, 108. There is also a Board of Pardons consisting of four members, two of each political party, and having advisory powers, in Michigan : Mich. 1885, 200. (F) In one other, by the governor, upon written recommendation of the lieutenant- governor, secretary of state, secretary of internal affairs, and attorney-general, or any three of them : Pa. C. 4,9. (G) So, in one, by the governor, upon the written recommendation of the lieutenant- governor, attorney-general, and presiding judge of the court where the person to be pardoned was convicted, or any two of them : La. C. 66. Exceptions. But in California a person twice convicted of felony cannot be so pardoned by the governor without the written recommendation of a majority of the judges of the Supreme Court. And in Kentucky, a person who has participated in a duel may be pardoned only after the expiration of five years from the offence : Ky. C. 8,21. Notes. — " Compare U.S. C. 2,2. The statutory provisions of a few states are also inserted, to make the treatment of the subject complete. ^ Nothing is said about commutations of sentence. <^ " Under the regulations and restrictions prescribed by law." § 161. What may be pardoned." In most states all offences may be pardoned according to § 160 (which see, for citations) except treason and in cases of im- peachment : Vt., N.Y., 0., Ind., Mich., Wis., lo., Neb., Md., Ky., Mo., Ark., Tex., Cal., Nev., Col., Ga., Ala., Miss., Fla., Dak.* In many, all offences may be pardoned, except only in cases of impeach- ment: N.H., Mass., Me., E.I., KJ., Pa., Minn., Md., Del., Va., W.Va., N.C., Tenn., S.C. And in Oregon, except only treason. In Vermont, except also murder. And by the Constitutions of some states, no exception is made of either treason or impeach- ment: Ct., 111., Kan., La. Treason may, in many states, be pardoned by the legislature ; and the governor may suspend the sentence until the end of the session of the legislature next following conviction : Vt. ; N.Y. ; 0. ; Ind. ; Mich. ; Wis. ; lo. ; Neb. ; Ky. ; Cal. ; Ore. ; Nev. ; Ga. ; Ala. ; Miss. ; Fla. C. 5,11 ; La. ; Dak.* C. Cr. P. 546. So, in two more, except that this power to pardon is vested in the senate : Tex., Ark. So also, in Vermont, of murder. Note. — » § 160, note ^ § 162. The Effect of a Pardon. In Alabama it does not relieve from civil or political disability unless so specifically expressed in the pardon. In Connecticut, the legislature, by a two-thirds vote of each full house, may restore the privileges of an elector to a person convicted of crime : Ct. C- Amt. 17. In Virginia, the governor may remove political disabilities consequent on conviction : Va. C. 4,5. And the legislature (by a two-thirds vote) may remove disabilities incurred by reason of dueUing ($ 223) : Va. C. 5^24. § 163. Reprieves.'' By the Constitutions of most states, the governor has power to grant reprieves in the same cases (§ 161) : Me.;* N.Y. ; KJ. C. 5,9 Pa.* C. 4,9 ; 0. ; Ind. ; 111. ; Mich. ; Wis. ; lo. ; Minn. ; Neb. ; Md. ; Del. Va. ; W.Va. ; N.C. ; Ky. ; Tenn. ; Mo. ; Ark. ; Tex. ; Cal. ; Ore. ; Nev.*^ C. 5,13 Col. ; S.C. ; Ga. ; Ala. ; Miss. ; Yla.' C. 5,11 ; La. ; Territories ; Wash.* ; Dak.* Ariz.* 36 BILL OF RIGHTS: CRIMINAL. Reprieves cannot, in two, be for more than sixty days: Nev., Fla. For the case of treason, see § 161. In two, the governor may grant reprieves, after conviction, except in cases of impeachment, until the end of the next session of the legislature : R.I. C. 7,4 ; Ct. C. 4,10. In New Jersey, reprieves cannot be granted in cases of impeachment. « Notes. — See § 160 for citations. ^ As in § 160, B. « As in § 160, A. § 164. Fines and Forfeitures " may, by the Constitutions of most states, be remitted by the governor or other persons in whom the pardoning power is vested (see § 160) : Me. ; Vt. C. 2,11 ; N.J. ; Pa. C. 4,9; Ind. C. 5,17 ; lo.; Md. ; Del. ; Va. C. 4,5 ; W.Va. ; Ky. ; Ark. ; Tex. ; Ore. ; Nev. ; S.C. ; Ga. ; Ala. ; Miss. ; Fla. ; La. ; Ariz.* ; Territories, U.S. R. S. 1841. And in one, the governor may suspend their collection for a period not exceeding sixty days : Nev. So, in one, he may suspend the collection of fines and forfeitures : N.J. C. 5,9. But he may not remit other debts due the state : Md. Note. — " See § 160 for citations. RIGHTS OF GOVERNMENT. 37 DIYISION II. POLITICAL PROVISIONS. § 180. Note to Division 2. For the statutes bearing on this division, see in Part III. ; so, in many cases where states liave no constitutional provisions, statutory- ones will there be found. But where, in the laws of the territories (which have no constitution) provisions are found corresponding with the more important provisions set forth in the text, they are duly incorporated therewith, in this Chapter and in Chapter II. So also, in some few cases, state statutes are cited, if there is no consti- tutional provision, and the subject is one provided for in most states by the Constitu- tion ; as, for instance, the qualifications of voters (Art. 24). CHAPTER I. POLITICAL CONSTITUTION. § 181. Note to Chapter. Compare, generally, with this chapter the United States Constitution, after which the political systems of the newer states are generally mod- elled. Provisions of United States laws having a special application to the territories, and the laws of the territories themselves, which correspond to the more important pro- visions in the text, are incorporated with it ; but the provisions of United States laws relating to the election of United States officers are omitted. See also § 180. Art. 18. Rights of Government. § 182. Authority derived from the People. The Constitutions of all states except New York, Illinois, Michigan, Wisconsin, Nebraska, and Mississippi, de- clare (a) that all political power is inherent in the people : N.H. C. 1,1 and 8 Mass. C. 1,5 and 7 ; Me. C. 1,2 ; Vt. C. 1,6 ; E.I. C. 1,1 ; Ct. C. 1,2 ; N.J. C. 1,2 Pa. C. 1,2 ; 0. C. 1,2 ; Ind. C. 1,1 ; To. C. 1,2 ; Minn. C. 1,1 ; Kan. C. Bill of Ets 2; Md. Decln. of Rts. 1; Del. C. Preamble; Va. C. 1,4; W.Va. C. 2,2; 3,2 N.C. C. 1,2 ; Ky. C. 13,4 ; Tenn. C. 1,1 ; Mo. C. 2,1 ; Ark. C. 2,1 ; Tex. C. 1,2 Cal. C. 1,2 ; Ore. C. 1,1 ; Nev. C. 1,2 ; Col. C. 2,1 ; S.C. C. 1,3 ; Ga. C. 1,1,1 ; Ala. C. 1,3 ; Fla. C. Decln. of Ets. 2 ; La. C. 1 ; N.M.* 95,1 ; July 12, 1851, § 1. (B) And so, in several, that Governments derive their just powers from the consent of the governed : N.H. ; 111. C. 2,1 ; Wis. C. 1,1 ; Neb. C. 1,1; Md. ; Del. ; N.C. ; Ark. C. 1,2; Ga.; La.; Ariz.* Bill of Ets. 1. (C) And in others, that they are founded on the authority of those governed : Me., Ct., Pa., Ind., Kan., Ky., Tenn., Mo., Tex., Ore., Col., Ala., La.. N.M.* And in most, that the people have at all times the riglit to make, alter, or reform the government: N.H. C. 1,10 ; Mass. C. Preamble, 1,7; Me. ; Yt. C. 1,7; E.L : Ct. ; N.J. ; Pa. ; 0. ; Ind. ; lo. ; Minn. ; Md. ; Del. ; Va. C. 1,5 ; W.Va. C. 3,3; N.C. C. 1,3 ; Ky. ; Tenn. ; Mo. C. 2,2 ; Ark. ; Tex. ; Cal.; Ore.; Nev.; Col. C. 2,2 ; S.C. ; Ga. C. 1,5,1 ; Ala. ; Fla. ; N.M.* ; Ariz.* 38 POLITICAL CONSTITUTION. So, in three, the doctrine of non-resistance is declared to be wrong ; and the people ought to reform or abolish the government when other means of redress fail : N.H. ; Md. Decln. of Rts. 6 ; Tenn. C. 1,2. § 183. Form of Government. The Constitution of Texas declares that the faith of the people stands pledged to a republican form of government : Tex. C. 1,2 ; and that of Kentucky, that absolute, arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic, not even in the largest majority : Ky. C. 13,2. § 184. The Object of Government is in many states declared to be for the security, benetit, and protection of the people: N.H. C 1,10; Mass. C. 1,7; Vt. C. 1,7 ; EI. C. 1,2 ; K J. C. 1,2 ; 0. C. 1,2 ; lo. C. 1,2 ; Minn. C. 1,1 ; Kan. C. BHl of Ets. 2 ; Va. C. 1,5; W.Va. C. 3,3 ; Ky. C. 13,4 ; Ark. C. 2,1 ; Cal. C. 1,2 ; Nev. C. 1,2 ; ria. C. Decln. of Ets. 2. So, in five, for their peace, safety, and happiness : Pa. C. 1,2 ; Ind. C. 1,1 ; Del. C. Preamble ; Tenn. C. 1,1 ; Ore. C. 1,1. So, in many, for their benefit, or " for the good of the whole : " Me. C. 1,2 ; E.I.; Ct. C. 1,2 ; Md. C. Decln. of Ets. 1 ; N.C. C. 1,2 ; Mo. C. 2,1 ; Tex. C. 2,2 ; Col. C. 2,1 ; Ga. C. 1,1,1 ; La. C. 1. So, in several, to protect the citizen in the enjoyment of life, liberty, and prop- erty : N.H. C. 1,3 ; 1,12 ; 111. C. 2,1 ; Wis. C. 1,1 ; Neb. C. 1,1 ; Mo. C. 2,4 ; Ark. C. 2,2 ; Ga. C. 1,1,2 ; Ala. C. 1,37 ; La. ; Ariz.* Bill of Ets. 1. And in New Hampshire, also in the enjoyment of rights of conscience : N.H. C. 1,4. In Massachusetts, to protect them in the enjoyment of their natural rights generally : Mass. C. Preamble. When Government assumes other functions than as above, it is, by the Constitu- tions of two states, declared to be usurpation and oppressi(m : Ala., La. So, in Missouri, when it fails of its objects as above, it fails of its chief design. § 185. OflBcers. [As a consequence of § 182] all officers are by the Constitutions of seven states declared to be accountable to the people as their trustees or servants : N.H. C. 1,8; Mass. C. 1,5; Vt. C. 1,6 ; Md. Decln. of Rts. 6; Va. C. 1,4 ; W.Va. C. 3,2; Ga. C. 1,1,1. § 186. Representation is, by the Constitutions of many states, reqnired to be apportioned according to population : Me. C. Amt. 25 ; Minn. C. 4,2 ; Kan. C. 10,2 ; Neb. C. 3,2 ; W.Va. C. 2,4 ; Ky. C. 2,6 ; Tex. C. 3, 25 and 26 ; Nev. C. 1,13 ; Col. C. 5,45 ; S.C. C. 1,34 ; Ala. C. 9,2 and 4 ; Fla. C. Decln. of Ets. 14; La. C. 16 and 17 ; Ariz.* Bill of Ets. 12. So, in two, of representatives to Congress : Va. C. 5,12 ; W.Va. C. 1,4. So, in two others, to be "founded on principles of equality." N.H. C. 2,9; Mass. C. 2,1,3,1. And in one, to be " equal and uniform : " Ky. So also, representation according to population, in both houses of tlie legis- lature, is in fact provided for in nearly all : N.H. C. 2,9 and 26 ; Mass. C. Amt. 21-22 ; Me. C. 4,1,2 ; Vt. C. 2,7 ; Ct. C. Amts. 2 and 18 and 23 ; N.Y. C. 3,4-5 ; Pa. C. 2,16-17 ; 0. C. 11,2 and 6 ; Ind. C. 4,5 ; 111. C. 4,6 ; Mich. C. 4,4 ; Wis. C. 4,3; lo. C. 3,35 ; W.Va. C. 6,4; 6,7; N.C. C. 2,4-5 ; Ky. C 2,5 and 14; Tenn. C. 2,4-6 ; Mo. C. 4,2 and 5 ; Ark. C. 8,1,2 ; Cal. C. 4,6 ; Ore. C. 4,6 ; Miss. C. 4,34-35 ; Fla. C. 13,1 ; Wash.* 2563-4 ; Dak.* Pol. C. 48 ; Ida.* 1874-75, p. 696 ; Wy.* 75,2. Territories, U.S. E. S. 1849 ; 1880, C. 119. And so in others, but as to the lower honse only : E.I. C. 5,1 ; N.J. C. 4,3,1 ; Md. C. 3,2-4 ; S.C. C. 2,4 and 8 ; Ga. C. 3,3,2-3. CONSTITUTION OF THE STATE GOVERNMENTS. 39 Art. 19. State Sovereignty. § 190. The United States Constitution," by the Constitutions of a few Southern states, is expressly declared the supreme law of the land : Md. C. Decln. of Rts. 2 ; Va. C. 1,3 ; W.Va. C. 1,1 ; N.C. C. 1,.5 ; Mo. C. 2,2; Cal. C. 1,3 ; Nev. Prelim. Act; Ga. C. 12,1,1 ; Ariz.* Bill of Rts. 2. So, in five, that the State is free and independent, subject only to the United States Constitution : N.H. C. 1,7 ; Mass. C. 1,4; Md. C. Decln. of Ets. 2-3 ; Tex. C. 1,1 ; Col. C. 2,2. So, in three states, the United States Constitution is declared part of the State law, anything in the State Constitutions or laws to the contrary notwithstanding : Md. ; Va. ; Ga. 1,4,2 ; Ten-itories, U.S. R. S. 1891. And so, also, in four. United States laws made under the Constitution : Md., Va., W.Va., Ga., Ariz.,* Territories. And in three, treaties by the national government : Md., W.Va., Ga. Note. — « Compare § 391. § 191. Allegiance. The Constitutions of five Southern states provide that the State shall always remain a member of the American Union : Va. C. 1,2 ; N.C. C. 1,4 ; Cal. C. 1,3 ; S.C. C. 1,5 ; Fla. C. Decln. of Ets. 21 ; Ariz.* Bill of Rts. 2. So, in six, that no law shall be passed in derogation of the paramount allegiance of the citizens of the State to the United States Government : " KC. C. 1,5 ; Nev." C. 1,2; S.C. C. 1.4; Miss, C. 1,20; Fla. C. Decln. of Ets. 2. So, in two, it is declared that the State and United States Constitutions apply as well in war as in peace : Md. C. Decln. of Rts. 44 ; W.Va. C. 1,3. Note. — a " In the exercise by the United States Government of the constitutional powers as defined by the U. S. Supreme Court : " [Nev.] § 192. Secession. The Constitutions of five Southern states declare that there is no right on the part of the state to secede or dissolve its connection with the Union : N.C. C. 1,4 ; Nev. C 1,2 ; Ala. C. 1,35 ; Miss. C. 1,20 ; Fla. Decln. of Ets. 2. And of six, that all attempts at secession ought to be resisted (1) by the State : Va. C. 1,2 ; N.C. ; S.C. C. 1,5 ; Fla. C. Decln. of Ets. 21. (2) By the Federal Government, and, if necessary, by force of arms : Nev. § 193. State Rights. But the right of local self-government belonging to tlie people of each state is in eleven of the older states declared a constitutional right which the national Government can never infringe : N.H. C. 1,7 ; Mass. C. 1,4 ; Vt. C. 1,5 ; Md. Decln. of Ets. 4 ; W.Va. C. 1,2 ; N.C. C. 1,3 ; Mo. C. 2,2 ; Tex. C. 1,1 ; Col. C. 2,2 ; Ga. C. 1,5,1. So, in Virginia, that the people have a right to uniform government ; and therefore that no government separate from, or independent of, the government of Virginia, ought to be erected or estabhshed within the limits thereof : Va. C. 1,16. And in four, that the powers not delegated to the United States by the United States Constitution, nor prohibited by it to the states, are reserved to the state : N.H. ; Mass. ; Md. Decln. of Rts. 3 ; W.Va. C. 1,2. Art. 20. Constitution of the State Governments. § 200. The Three Functions. By the Constitutions of all, except New York, Pennsylvania, Ohio, Wisconsin, Kansas, and Delaware, the powers of Govern- ment are divided into three distinct departments, — the legislative, executive, 40 POLITICAL CONSTITUTION. and judicial : N.H. C. 1,37 ; Mass. C. 1,30 ; Me. C. 3,1 ; Vt. C. 2,6 ; E.L C. Art. 3 ; Ct. C. Art. 2 ; N.J. C. Art. 3 ; Ind. C. 3,1 ; lU. C. 3,1 ; Mich. C. 3,1 ; lo. C. 3,1 ; Minn. C. 3,1 ; Neb. C. 2,1 ; Md. Declu. of Rts. 8 ; Va. C. 2,1 ; W.Va. C. 5,1 N.C. C. 1,8 ; Ky. C. 1,1 ; Tenn. C. 2,1 ; Mo. C. 3,1 ; Ark. C. 4,1 ; Tex. C. 2,1 Cal. C. 3,1 ; Ore. C. 3,1 ; Nev. C. 3,1 ; Col. C. 3,1 ; S.C. C. 1,26 ; Ga. C. 1,23 Ala. C. 3,1 ; Miss. C. 3,1 ; Fla. C. 3,1 ; La. C. 14. And in most of these it is declared that no person or collection of persons ex- ercisin'' Kan. C. 2,5; Neb.; Md. C. 3,10 ; DeL C. 2,12 ; W.Va.; N.C. ; Ky. C. 2,27 ; Tenn. C. 2,26 ; Mo. C.4, 12 ; Ark. ;' Tex. ; Ore.-^ C. 2,10; Col. C. 5,8 ; S.C. C. 2,28 ; Ga. C. 3,4,7 ; La. ; Territories,V U.S. R. S. 1854. Or, in many, for gov- ernor : N.H. ; Mass. ;'' Me. ; N.J. ; Pa. C. 4,6 ; 0. C. 3,14; Ind. C. 5,8 ; Mich. C. 5,15; lo. C. 4,14; Kan. C. 1,10; DeL C. 3,5 ; Ky. C. 3,6; Tenn. C. 3,13; Ark. C. 6,11 ; Cal. C. 5,12 ; Nev. C. 5,12 ; Ore. C. 5,3; La. C. 60. So, iu one, no person can be governor who, within six months oi his election, was a member of Congress or held office under the United States : La. And, in two, no person elected to Congress can continue to hold tlie offices of judge, attorney-general, scdicitor-general, county attorney, clerk of any court, sheriff, treasurer, register of probate, or register of deed«: Mass., Me. And conversely, iu two, no member of the State legislature can during his term be elected to the United States Senate : N.Y. C. 3,7 ; Mich. C. 4,18. And in many, a member of the State legislature taking any United States office, or being elected to Congress, vacates bis seat : Me. C. 9,2; R.I. ; N.Y. C. 3,8 ; N.J. C. 4,5,2 ; Wis. ; Kan. C. 2,5 ; Md. ; Mo. ; S.C. C. 2,28. And the governor cannot accept any United States office without vacating his seat : N.J., Ala. And he cannot be elected by the legislature to Congress : N.J. : Cal. C. 5,20. So, no judge can hold a United States office : Minn. C. 6,11 ; Kan. C. 3,13 ; Md. ; Tenn. ; S.C. ; Ala. (c) And by the Constitutions of several states, that no person holding office under a foreiijn power can also hold an office of trust, profit, or honor, under the State : R.L; 111. C. 4,3 ; Wis. C. 13,3 ; N.C. ; Ky. C. 8,18 • Tex. C. 16,12 ; CaL C. 4,20 ; Nev. C. 4,9 ; La. C. 153. So, in three, no person holding office under another of the United States: N.C; Ky. C. 8,18; Tex. C. 16,12; La. So, in several, no person holding office under a foreign power (or under another state : W.Va., S.C, Ga., La.) is eligible for the legislature : E.I. ; IlL ; lo. ; W.Va. ; Ky. ; Tex. ; S.C. C. 2,28 ; La. C. 153. Or, in four, for governor: N.H. C. 2,93; Mass. 0. 2,6,2; Me.; Ore. Or, in two, for judge of the Supreme Court : N.H., Mass. Or, in one, for the council : Me. And conversely, no person holding any office under the state shall accept any office or title from any prince, 52 POLITICAL CONSTITUTION. king, or foreign power: Del. C 1,19. So, in two, of the governor: S.C C. 3,3; Ala. So, in one, of the judges : S.C C. 4.9. Notes. "No territorial statutes are included in this Article. Except where otherwise specified this Article extends to all state offices, legislative, executive, administrative, and judicial. For special disqualifications in certain cases, see Art. 20 and § 561. * Except the office of justice of the peace. <"- Except postmasters. ^ Nor any person who has held such office within one hundred days previous to his election. « Of judges of the superior or supreme courts only. / But he may be elected or ap- pointed thereto, thereby vacating his old office. » Unless he resign such office before taking the new one. § 221. Age and Citizenship." (A) And by the Constitutions of several states, no person who is not a citizen of the United States can hold any office under the state : 111. C. 7,6 ; Mo. C. 8,12 ; Uta.* (B) In several, all persons entitled to vote are eligible for office except as specially restricted elsewhere : Va. C. 3,2 ; N.C. C. 6,4. So, in many, no one who does not possess the qualifications of an elector is eligible for office : Ct. C. 6,4; 0. C. 15,4; Minn. C. 7,7; W.Va. C. 4,4 ; Ark. C. 19,3; Kev. C. 15,3 ; Col. C. 7,6 ; S.C. C. 14,1 ; Miss. C. 7,4; La. C. 195. And in one lie must be a registered voter : Fla. C. 16,22. In three he must be an elector of the county or district where tlio functions of the office are to be exercised : R.T. C. 9,1 ; Del. C. 3,8 ; La. (C) So, in six, no one who is not resident in the state; and in three, he must have resided in the state (1) one year: 111.; Mo.; Fla. C. 16,22. In three, he must continue to reside within the state : Ky. C. 8,11 ; Ark. C. 19,4 ; Tex. C. 16,14. (D) And further, be must, in four, have resiiied (1) six months in the county where appointed: Fla. So, (2) sixty days: S C. C 8,7; (3) thirty days: Minn. C. 7,7; (4) one year: Del. (E) And in four, if he change his residence from the district he forfeits the office : Del., Ark., Tex., La. (F) By the Constitutions of some states, no woman can hold office: see % 25. Notes. — « For religious qualifications, see § 46 ; for sex and color, see §§ 21,24 ; for the legisla- tive and executive offices, see Art. 20 ; for judicial offices, see Art. 56. § 222. Property and Educational Qualifications. The Constitutions of several states provide that there shall be no property qualification for holding office : Minn. C. 1,17; Kan. C. Bill of Rts. 7; Del." C. 7,12; N.C. C. 1,22; Cal. C. 1,24; S.C. C. 1,32; Ala. C. 1,38; Miss. C. 1,17. And in one, that there shall be no educational qualification required : Ala. Note. — " Except in cases specially j)rovided by law. §223. Disqualifications:" (a) Insanity.* No insane'" person can, by the Constitutions of three states, hold any'' State office:'' Ga. C. 2,2,1; Ala. C. 8,3; La. C. 187. So, no idiot:*-'' Ga., Ala., La. (B) Crime. In many, no person convicted of infamous * crime can hold office : ''■ Pa. C. 2.7 ; 0.' C. 5,4 ; 111. C. 4,4 ; Wis. C. 13,3 ; Minn.« C. 4,15 ; Neb.^ C. 14,2; N.C.^ C. 6,5 ; Ark. C. 5,9 ; Ga/ C. 2,2,1 ; Ala. C. 4,18 ; Miss. C. 4, 17 ; Fla. C. 14.4; La. C. 148. So, in three, no person convicted of " other high crimes " (see below) : Ky.« C 8,4 ; Tex. C. 16,2; CahC. 20,11. Or, in one, "high misdemeanors: " Ky.* So, in one, all persons under interdiction : La. But in one, no person can be disqualified for crimes committed while such person was a slave: S.C. C. 8.12. (C) Special Crimes. And the Constitutions of some states further specify (I) that a conviction for murder shall disqualify for holding office : S.C* C. 8,8. QUALIFICATIONS FOR OFFICE. 53 (2) So, convictidu fur robbery : S.C/ (;j) So, for larceny: Ga.;/ Ala. C. 8,3; Fla. ; La. (4) So, for forgery : Ky. ; « Ark. ; Tex. ; Cal. ; Miss. C. 12,2 ; La. (.5) So, for treason: N.C.,/S.C.,« Ga./Ala., La. (6) So, in many, for perjury: Pa.; 0.;^ 111.; Minn. ; « N.C.;^ Ky. ; « Tex.; Cal.; Col. C. 12,4 ; Ala. ; Miss. ; Fla. ; La. And so, specially, in five, all persons convicted of swearing falsely to, or violating, the oath of office'' (^ 224) : 111. C. 4,5; Neb.'' C. 14,1 ; Md. C. 1,7^; W.Va. C. 6,16; Mo. C. 4,15. (D) Malfeasance in Office. In four there is a general provision iu the Constitution that all i)ersons shall be so disqualified for malfeasance in office : Cal., Ga.,'' Ala., La. Or, in two, for corruption in office: N.C.,-'' Ga. And compare E, F. Or, in one, malpractice in office : N.C.-'" So, in one, any officer who wittingly takes more fees than the law allows bim : Vt. C. 2,25. (E) Public Defalcation. In many, there is a general provision in the Consti- tution that convicted defaulters or embezzlers of public moneys are ineligible for office; Pa.; 0. C. 2,5 ; Wis.^ C. 13,3 ; Ark. C. 5,9 ; Cal.^ C. 4,21 ; Nev. C. 4,10; Cob C. 12,4; S.C. C. 9,15; Ga.;* Ala.; Fla. C. 4,9 ; La. So, in many, any person who remains liable for public moneys unaccounted for, whether actually convicted of defalcation or not: 0. ; Ind. C. 2,10; 111. C. 4,4 ; Mich. C. 4,30 ; lo. C. 3,23 ; Neb. C. 16,2 ; Md. C. 3,12 ; Tenn. G. 2,25 ; Mo. C. 2,19 ; Ark. C. 5,8 ; Tex. C. 3,20 ; Ore. C. 2,11 ; Col. C. 12,3 ; Ga. C. 2, 4,1 ; Miss. C. 4,16 ; La. C. 171. So, in one, any person against whom there is a judgment unpaid for any moneys received by them in an official capacity and due the United Slates, the state, or any county thereof: Ala. And in one, no person who at any time was a collector of taxes or public moneys can be elected to the legislature unless six mouths before bis election be obtained a quietus for all pub- lic moneys for which he was responsible : Ky. C. 2,28. (F) Bribery. In many, there is a general constitutional provision that a conviction for bribery (whether of the party giving or receiving the bribe) dis- qualifies for holding office:'' Pa. ; O."' C. 5,4 ; 111. C. 4.4' Minn.^'c. 4,15 , Md. C. 3,50; W.Va.« C. 6,45; Ky.<^ C. 8,4; Ark. C. 5,9; Tex. C. 16,2; Cal. C 20,11; Col. C. 12,4 ; Ga. C. 2.2,1 ; Ala. ; Miss. C. 4,17 ; Fla. C. 14,4 ; La. C. 173. The same is implied in N.Y., Tex., Nev. See § 152. Bribery at Elections, effected or attempted, forever disqualifies for office, in several, both the party receiving and the party giving or offering the bribe : " Md. C. 1,3; Ark. C. 3,6 (but there must be a conviction of actual bribery); Xev. C. 4,10 ; Ga. C. 2,2,1 ; Miss. C. 4,18 ; Fla. C. 4,9 ; La. But in four, only the person offering the bribe ; N.H. C. 2,96 ; Mass. C. 2,6,2 ; Tex. C. 16,.5 ; Miss. So, in several, a person giving or offering a bribe to procure his own election or appointment is disqualified from holding the office for which he was elected during the terra for which he was elected : Vt. C. 2,34 ; R.I. C. 9,2 ; Ind. C. 2,6 ; Kan. C. 5,6 ; Ky. C. 8,-3 ; Tenn. C. 10,3 ; Tex. C. 16,5 ; Ore. C. 2,7. And in one, he is disqualified to bold such office for six years after the act of bribery : Tenn. In three, he is forever disqualified for office : Pa. C. 8,9 ; Cal. C. 20,10 ; Miss. C. 12,2. So, in two, be is disqualified fur giving a " treat " to procure his election; Ky. , Tenn. Bribery, effected or attempted, of a member of the legislature, forever disqualifies for office (1) both the parties to the bribery. W.Va. ; Fla. ; La. (2; In one, only the member of the legi.'slature is so disqualified: Cal. C 4,35, Bribery iu obtaining an appointment to office so disqualifies the person offering the bribe : N.H., Mass. (G) Betting on Elections is, in Florida, cause of disqualification for office. (3) So, in two, any person who, while a candidate for office, is guilty of fraud or wilful violati(m of the election laws, is forever disqualified for office : Pa. C. 8,9 ; Ark. C. 3,6 (whether a candidate for office or not). So, in one, of illegal voting: La. C. 187. 54 rOLITICAL CONSTITUTION. (H ■ Duelling, hy the Constitutions of most states, is cause of disqualification for any office/' Thus, in many, fighting a duel, as principal : Pa. C. 12,3 ; 0. C. 15,5 ; Ind C 2 7 • Mich. C. 7,8 ; Wis. C. 13,2 ; lo. C. 1,5 ; Md.-^ C. 3,41 ; Va. C. 3,1 ; W Va C 410 ; N.C. C. 14,2 ; Tenn. C. 9,3 ; Mo. C. 14,3 ; Ark.* C. 19,2 ; Tex. C. 16,4; Cal. C. 20,2; Ore. C. 2,9; Nev. C. 15,3; Col. C. 12,12; S.C. C. 1,32; Ga.^C. 2,4,2; Miss. C. 1,27; Fla. In several, absence from the state for the purpose of fighting a duel : Ind. ; Kan. C. 5,5 ; Md. ;-^ KC. ; Mo. ; Tex. ; Ore. ; Nev. ; Col. ; Miss. And in many, the behig second in a duel : Pa., 0., Md.,^ W.Va., N.C, Mo., Ark.,* Tex., Cal., Nev., Col., Miss., Fla. In many, the giving, carrying, or accepting a challenge : Pa. ; O. ; Ind. ; Kan. ; Md.;^ Va.; W.Va. ; N.C; Ky.* C 8,20; Tenn.; Mo.; Ark.;* Tex.; Cal.; Ore.; Nev.; Col.; S.C; Ga.;' Miss.; Fla. And in many, the being engaged in a dnel in any state or country either as principal or accessary : Mich., Wis., lo., Md.,*'>" Va., W.Va. , Tenn., Tex., Cal., Nev., S.C, Ga.^ (1) Professional Disqualifications. No minister or preacher of any religious de- nomination can, in four states (1) be a member of the legislature : Md. C 3,11 ; Del.' C. 7,8; Ky. C 2,27; Tenn, C 9,1. Or (2) iu one, be governor : Ky. C. 3,6. Or (3) in oue, he cannot hold any civil office : Del.' Army. (Compare § 220, B.) So, in the territories, no soldier, seaman, or marine in the regular army or navy of the United States can hold a state office : U.S. R. S. 1800. Notes. — ° See also § 46 and Art. 20. * See Glossary. <^ Including membership in the legis- lature, unless otherwise specified. <^ The same results indirectly in other states from the provisions of § 221. « In these states, tlie Constitution only provides that the legislature may i)ass laws to this eflect. /Unless legally (see Art. 16) restored to the rights of citizenship, s Whether the conviction he in the home state or in any other. * So, in many states, by statutes. » See § 224, note ^. i Tlie duel being with a citizen of the state. * The disqualification lasts for only ten years. * While he continues in exercise of his pa.storal functions. § 224. Oath of Office. (A) Members of the legislature are, by the Constitutions of most states, required to make oath (1) to support the National and the State (if in a state) Constitutions : Me. C. 9,1 ; Pt.I. C. 9,4 ; Ct. C. 10,1 ; N.Y. C. 12,1 ; N.J. C. 4,8,1 ; Pa. C. 7,1 ; 0. C. 15,7 ; Ind. C. 15,4 ; 111. C. 4,5 ; Mich. C. 18,1 ; Wis. C. 4,28; lo. C. 3,32 ; Minn. C. 4,29 ; Kan. C. 2,7; Neb. C. 16,1 ; Md. C. 1,6 ; Va. C. 3,5 ; W.Va. C.4,5 ; N.C. C. 2,24 ; Ky. C. 8,1 ; Tenn. C. 10,1 ; Mo. C. 4,15 ; Ark. C. 19,20 ; Tex. C. 16,1 ; Cal. C. 20,3 ; Ore. C. 4,31 ; Nev. C. 15,2 ; Col. C. 12,7 ; S.C. C. 2,30 ; Ga. C. 3,4,5 ; Ala. C. 15,1 ; Miss. C. 12,26 ; Fla. C. 16,10 ; La. C. 149. So, in one, to support the Union : Ark. But 80, in four states, to bear allegiance to the State, and support the State Constitution, only: N.H. C. 2,84; Mass. C. Amt. 6; Vt. C. 2,12; 2,29; Del. C. 8,1. (2) And in all states, to faithfully discharge the duties of the office : N.H. Mass. C. 2,6,1 ; Me. ; Vt. ; R.I. ;' Ct. ; N.Y. ; N.J. ; Pa. ; O. ; Ind.; 111. ; Mich. Wis. ; lo. ; Minn. ; Kan. ; Neb. ; Md. ; Del. ; Va. ; W.Va. ; N.C. ; Ky. ; Tenn. :Mo. ; Ark. ; Tex. ; Cal. ; Ore. ; Nev. ; Col. ; S.C. ; Ga. ; Ala. ; Miss. ; Fla. ; La. (3) In five, they must make oath that they have not, directly or indirectly, paid, or offered to pay, any consideration, or made any promise, as a reward for the giving or withholding a vote at an election : N.Y., Pa., 111., Neb., Tex. And in four, also that they will not accept or directly or indirectly receive any valuable ooii- eidonition (a) for the giving or withholdini^ a vote: Pa. ; 111. ; Neb. ; W.Va. C 0,1G; Teuu. C. 10,2. Or (/ij) for the doing or not doing any duty relating to their office : Pa., Mo. ELECTIONS. 55 (4) In three, that they have not heen concerned in a duel (as prohibited in $ 223) : Ky. C. 8,1 (in a duel with a citizen of Kentucky) ; Tex. ; Nev. And in one, in general terms, that they have not violated any election law of the state, or procured others to do so : Pa. (5) And in four, they must make oath, in general terms, that they are not disquahfied (a) for holding office under tlie National or State Constitution: Miss., Fla. And (/j) that they will not receive the profits of auy other office during their term as governor, member of the legislature, or judge : Md. (G) In one, that they recognize the civil and political equality of all men before the law: Va. (7) In one, that they hold no office of profit or trust under Congress : Vt. C. Amt. 1883. (B) The various provisions in the oath so required in the several states re- spectively of members of the legislature are, in some states, also required of the governor:'* NH. ; Mass.; Me.; KG. C. 3,4; S.C. C. 3,20; Ga. G. 5,1,10 ; Fla. G. 5,2. And in most states, of all officers of the state executive : " I\Iass. ; Me. ; Vt. ; RI. ; Ct. : KY. ; Pa. ; 0. ; 111. G. 5,25 ; Mich. ; Wis. ; lo. G. 11,5 ; Minn. C. 5,8 ; Kan. ; Neb. ; Del. ; Mo. G. 14,6 ; Ark. ; Gal. ; Nev. ; Ga. G. 5,1,10 ; Ala. ; Terri- tories, U.S. R. S. 1878 (as in A, 1 and 2). (C) So, in many, specially, of all judicial officers:'' Me., Vt., E.I./ Gt., KY., Pa., Mich., Wis., Ic, Kan., Keb., Del., Mo., Ark., Gal., Kev., Ala. Of judges of tlie Supreme Court : Ore. C. 7,21. (D) So, iu several, of all military officers : N.H., Mass., Me., Vt., R.I.,* Tenn., Mo.," Ark. (E) So, in two, of all members of the bar : " Ky., S.C. (F) So, in four, of auy person appointed to any office under the Constitution : Me. ; Md. ; Tenn.; Ore. C. 15,3. (G) So, in many, of all state officers : " Mass. ; jNIe. ; Pa. ; 0. ; Ind. ; lo. ; Kan.; Md. ; Va. ; W.Va.;« KG. f. 6,4; Ky. ; Tex.; Kev.; Gol. G. 12,8 ; S.G. ; Miss. ; Fla. ; La. (H) So, in two, of all civil officers [not " general"] : N.H. ; U.l.;" 111." C. 5,25; Mo. ; » Ark. (I) So, in two, all county officers : Pa., Ark. Violation of the Oath of OiSce by members of the legislature is, by the Constitution of Missouri, declared to be perjury: Mo. C. 4,15. And in three states, any officer convicted of having sworn falsely to. or violated, his oath of office, forfeits it : Ill.<^ C. 4,5 ; Neb. C. 14,1 ; Md. C. 1,7. See also § 223, F. Notes. — « § 224 (3), the provisions concerning bribery at the election, etc., are not required in the oath of these officers. * § 22i (2), the provision to faithfully discharge, etc., is not required iu the oath of these officers [R.I. C. 3,4]. <= Of members of the legislature only. § 225. General Provisions. The Constitution of West Virginia declares political tests which require persons, as a prerequisite to the enjoyment of their civil and political rights, to purge themselves by tlieir own oaths of past alleged oflFences, are repugnant to the principles of a free government, cruel, and oppressive: W.Va. C. 3,11. Art. 23. Elections. § 230. General Provisions. The Gonstitutions of many states declare that all elections should be free : « KH. G. 1,11 ; Mass. G. 1,9 ; Vt. G. 1,8 ; 2,34 ; Pa. C 1,5 ; Ind. G. 2,1 ; 111. G. 2,18 ; Keb. G. 1,22 ; Md. Decln. of Ets. 7 ; Del. G. 1,3 ; Va. G. 1,8 ; KG. G. 1,10 ; Ky. G. 13,7 ; Tenn. G. 1,5 ; Mo. G. 2,9 ; Arli. G. 3,2 ; Ore. G. 2,1 ; Gol. G. 2,5 ; S.G. G. 1,31. 56 POLITICAL CONSTITUTIOX. Of three, that they shall be open : Mo., Col., S.C. Of ten, that they shall be equal : N.H., Mass., Pa., Ind., 111., Del., Ky., Tenn., Ark., Ore. Of three, that they shall be frequent : Md. ; Va. C. 1,7; N.C. C. 1,28. So, in five, that no power, civil or military, shall ever interfere with the free exercise of the right of suffrage : Pa., Neb., Mo., Ark., Col. Note. — « Compare Stat. Eng. 1 W. & M. Session 2 ; also, § 235. § 231. Votes by Ballot. The Constitutions of many states provide tliat all elections shall be by ballot : N.Y. C. 2,5 ; 0. C. 5,2 ; 111. C. 7,2 ; Mich. C. 7,2 ; Wis. C. 3,3 ; lo. C. 2,6 ; Minn. C. 7,6 ; Neb. C. 7,6 ; Md. C. 1,1 ; Del. C. 4,1 ; Va. C. 3,2 ; W.Va. C. 4,2. So, in most, all elections by the people : N.H. C. 2,14 and 42 ; Mass. C. 2,1,3,3 ; Me. C. 2,1 ; Vt. C. 2,8 ; Amt. 19 ; E.I. C. 8,2 ; Ct. C. 6,7 ; Amt. 6 ; Pa. C. 8,4 ; Ind. C. 2,13 ; Kan. C. 4,1 ; KC. C. 6,3 ; Tenn. C. 4,4 ; Mo. C. 8,3 ; Ark. C. 3,3 ; Tex. C. 6,4 ; Cal. C. 2,5 ; Nev. C. 2,5 ; Col. C. 7,8 ; S.C. C. 8,1 ; Ga. C. 2,1,1 ; Ala. C. 8,2; Miss. C. 4,7 ; 7,1 ; Fla. C. 14,5 ; La. C. 184 ; Wash.* 3079 ; Dak.* Pol. C. 27,12 ; Ida.* 1874-75, p. 686,13 ; Mon.* G. L. 526 ; Wy.* 45,25 ; Uta.* C. L. 21 ; KM.* 63,22 ; Ariz.* 1358. But in Kentucky all elections by the people must be viva voce, except that dumb persons may vote by ballot: Ky. C. 8,15. So, " until the legislature otherwise direct : " Ore. C. 2,15. And all elections by the le.^islature, or by the people in a representative capac- ity, must be viva voce : Pa. C. 8,12 ; 0. C. 2,27 ; Ind. ; Mich. C. 4,11 ; Wis. C. 4,30 ; lo. C. 3,38 ; Minn. C. 4,30 ; Kan. ; Neb. C. 3,8 ; W.Va. C. 6,44 ; N.C. C. 2,9 ; Ky. ; Tenn. ; Mo. C. 8,6 ; Ark. C. 3,12 ; Tex." C. 3,41 ; Cal. C. 4,28 ; Ore. ; Nev. ; S.C. C. 2,24; Ga. C. 3,10,1 ; Ala. C. 4,44; Fla. ; La. ; Dak.* Pol. C. 2,11 ; Ariz.* 1112. Note. — " Except in electing tlieir own oiBceis. § 232. Majority Vote. By the Constitutions of nearly all, (A) the person hav- ing the highest number (i. e., a plurality) of votes is to be declared elected : Mass. C. Amt. 14 ; Me. C. 4,1,5 ; 4,2,5 ; 5,1,3 ; Amts. Art. 24 ; Vt.*^ C. Amt. 5 ; Ct.'^ C. Amt. 3 ; N.Y.^ C. 4,3 ; N.J.^ C. 5,2 ; Pa.<^ C. 4,2 ; 0.* C. 3,3 ; Ind.-^ C. 5,5 ; 111.^ C. 5,4 ; Mich.^ C. 5,3 ; W^is.<^ C. 5,3 ; lo.^ C. 4,4 ; Kan.* C. 1,2 , Neb.* C. 5,4 ; Md.^ C. 2,3; 15,4; DeP C. 3,2; Va.^ C. 4,2; W.Va.* C. 7,3; N.C* C. 3,3 ; Ky.-^ C. 3,2 ; Tenn.*^ C. 3,2 ; Mo.* C. 5,3 ; Ark.* C. 6.3 ; Tex.* C. 4,3 ; Cal.'^ C. 5,4 ; Ore. C. 5,5; Nev.* C. 5,4; Col.* C. 4,3; S.C. C. 8,10; 3,4; Ala.* C. 5,4; Miss.^ C. 5,2 ; Territories, U.S. Pt. S. 1847 ; Wash.* 3096 ; Dak.* Pol. C. 27,43 ; Ida.* 1874-75, p. 693,36 ; Mon.* G. L. 549 ; Wy.* 45,38 ; Uta.* 24-25 ; N.M.* 63,28 ; Ariz.* 1373; D.C.* 99-100. And so, in four, a plurality of votes given at any election shall constitute a choice, where not otherwise directed in the Constitution : Cal. C. 20,13 ; Ore. C. 2,16 ; Nev. C. 15,14; Fla. C. 16,16. (B) But in one state, in all elections held by the people, a majority of votes cast is neces- snry to a choice : R.T. C. 8,10. (C) When there is no majority for any person for governor, in five states, the legislature in joint session elects him : N.II. C. 2,42 ; Vt. C. 2,10 ; Amt. 9 ; U.I. C. 8,7 ; Ct. C. 4,2 ; Ga.'' C. Sjl.S"'; 5,2,1. So, in two, when there is none for lieutenant- fjovemor : Vt., R.I., Ct. Or for the council : N.H. C. 2,G1. And so, in two, in the case of state senators, wlien no candidate has received a majority : N.H. C. 2,33; Me. C. 5,1,3. So, in two, when there is none for secretary, treasurer, or attorney-general : R.I., Ct. ; or for treas- urer: Vt., Ga. Or for secretary of state or comptroller : Ga. For vacancies in offices, see $ 201. Notes. — " In these states this nile applies only to elections of state representatives. * In these, only to elections of the officers of the executive (see § 202). " In these, only to elections of the gov- ernor or lieutenant-governor. <' In these, only to elections of the legislature. ELECTIONS. 57 § 233. Cumulative Vote. By the Constitution of Illinois (each Jistrict voting for three representatives), each voter may cast as many votes for each candidate as there are state repre- sentatives to be elected, or may distribute his votes, or equal parts thereof, among the candi- dates as he sees fit : 111. C. 4,7 and 8. § 234. Election Day, by the Constitutions of the states, or statutes in some states aud the territories, comes as follows : " (a) In nearly all states, on the first Tuesday after the first Monday in November, (1) biennially, in the even years : N.H. C. 2,12 ; 2,28 ; Ct. Amt. 27,1 ; 111. C. 4,3 and 5,3 ; Mich. C. 4,34 ; Wis. C. 13,1 ; To. C. Amt. 1 (1882, No. 12) ; Minn. C. 7,9, Amt. 1883 ; W.Va. C. Amt. 1884 ; KC. C. 2,27 ; Code, 2668 * ; Tenn. C. 2,7 ; Mo. C. 8,1 ; Ark.* C. 5,13 ; Tex.* 1659 ; Cal. C. 4,3 ; Nev. C. 4,3 ; 15,5 ; S.C. C. 2,11 ; Amt. ; Fla. C. 4,3 ; Wash.* 3055 ; Ida.* 1874-75, p. 684, § 3 ; Mon.* G. L. 517 ; Wy.* p. 307, § 1 ; KM.* 1876, 25,1 ; Ariz.* 1124. (2) Biennially, in the odd years : Md. C. 3,7 ; 15,7 ; Va. C. 5,2 ; Miss. C. 4,7 ; 12,1, Amt. 4. (National or other elections on the same day in any year.) (3) Annually : Mass. C. Amt. 15 ; N.Y. C. 3,9 ; N.J. C. 4,1,3 ; Pa. C. 8,2 ; lud. C. 2,14 ; Kan. C. 4,2 ; Neb. C. 16,13 ; Del. C. 4,1 ; Dak.* Pol. C. 27,2. In Ohio, on the second Tuesday in October, annually, in the odd years: 0. C. 2,2; Sched. 2. (B) In Louisiana the general election day is every four years on the Tuesday after the third Monday in April: La. C. 19L In Maine, on the second Monday in September in the even years : Me. C. 2,4; Amt. 23; first Monday in June, biennially, even years: Ore. C. 2,14. In Vermont, on the first Tuesday in September, biennially, on the even year : Vt. C. 2,8 ; Amt. 24, L In Arkansas, on the first Monday in September, biennially, on the even year : Ark. C. 3,8; Jan. 23, 1875, § 1. In Rhode Island, on the first Wednesday in April, annually : E.I. C. 8,1. In Kentucky, on the first Monday in August, biennially, on the odd years: Ky. C. 2,3 ; 3,26. On the first Wednesday in October, biennially, on the even years : Ga.* C. 3,4,2. On the first Tuesday in October, annually : Col. C. 5,2 ; 7,7. In two, on the first Monday in August, (1) biennially, on the even years : Ala.*" C. 4,3. (2) Annually : Uta.* 17. Notes. — " See § 240, note ". * But the legislature may fix a different day. § 235. Conduct of Elections. The Constitutions of many states provide that the right of suffrage shall be protected by laws regulating elections aud prohibiting all undue influences from power, bribery, tunmlt, or improper con- duct : Ct. C. 6,(j ; W.Va. C. 4,11 ; Ky. C. 8,4 ; Tex. C. 16,2 ; Cal. C. 20,11 ; Ore. C. 2,8 ; Nev. C. 4,27 ; S.C. C. 1,33 ; Ala. C. 1,34 ; Fla. C. 4,24. So, in two, there is a general provision that the legislature may enact laws concerning the judges, time, place, and manner of elections: Md. C. 3,49; Del. C. 7,11. And in three, that the legislature .shall forbid the sale of intoxicating liquors near the polls: Ga. C. 2,5,1 ; Ala. C. 8,6; La. C. 190. In four states, the election officers are sworn not to disclose how any person shall have voted, except in judicial proceedings: Pa. C. 8,4; Mo. C. 8,3; Ark. C. 3,3; Col. C. 7,8. So, in one, a voter may vote by sealed ballot if he so choose : W.Va. C. 4,2. § 236. Registration. Tlie Constitutions of a few states have a general pro- vision that there shall be laws to preserve the purity of elections, prevent fraud, aud guard against the abuse of the elective franchise : E.I. C. 2,6 ; N.Y. C. 2,4 ; Mich. C. 7,6^ Kan. C. 5,4 ; Md. C. 3,42 ; W.Va. C. 4,11 ; Tenn. C. 4,1 ; Tex. C. 6,4 ; Nev. C. 2,6 ; Col. C. 7,11 ; Ala. C. 8,5. And in many, provision for regis- tration of voters is specially made : E.I. ; Ind. C. 2,2 aud 14 ; Wis." C. 3,1, Amt. ; Md. C. 1,5; N.C. C. 6,2 ; Mo. C. 8,5 ; Nev. ; S.C. C. 8,3 ; Ga.^ C. 2,2,1 ; Ala. ;* Miss. C. 7,3 ; Fla. C. 14,6 ; La.* C. 186. 58 POLITICAL CONSTITUTION. But iu two, the Coustitutiou expressly forbids registration laws : Ark. C. 3,2 ; Tex. And in two, no elector shall be deprived of his vote by reason of his name not being registered : I'a. C. 8,7; W.Ya. C. 4,12. And, in one, the legislature shall establish no board or court of registration of voters : W.Va. C. 6,43. Notes. — " The legislature may provide for registration in incorporated cities and towns. ^ Such provision may be made by the legislature. § 237. Freedom from Arrest. In most states, the Constitution provides that electors shall be free from arrest while attending', going to, or returning from the polls, except for treason, felony, or breach of the peace : Me. C. 2,2 ; Pa. C. 8,5 ; O. C. 5,3 ; Ind. C. 2,12 ; 111. C. 7,3 ; Mich. C. 7,3 ; lo. C. 2,2 ; Kan. C. 5,7 ; Neb. C. 7,5 ; Del. C. 4,2 ; Ky. C. 2,9 ; Tenn. C. 4,3 ; Mo. C. 8,4 ; Ark. C. 3,4 ; Tex. C. 6,5; Cal. C. 2,2 ; Ore. C. 2,13; Col. C. 7,5; S.C. C. 8,6; Ga. C. 2,3,1; Ala. C. 8,4; Miss. C. 4,7 ; La. C. 189 ; Ariz.* Bill of Ets. 24. So, in three, on any civil process : Ct. C 6,8 ; Va. C. 3,4 ; W.Va. C. 4,3. So, in two, that they are not liable to arrest on civil process during election day ; INIinn. C. 7,5; Nev. C. 2,4. Nor, in three, are they required to attend court on that day, either as party or witness: Mich., Va., W.Va. And iu eight, they are not obliged to perform military duty on election dav, e.Kcept in time of war or public danger:" Me. C. 2,3; 111.; Mich. C. 7,4; lo. C. 2,3 ; Nc'b. ; Va. ; W.Va. ; Cal. C 2,3 ; Ore. § 238. Contested Elections are, by the Constitutions of many states, to be tried (A) in a manner to be provided by law : Ct." C. 4,2 ; KJ." C. 5,2 ; 0. C. 2, 21; Io.*C. 3,7; W.Va. C. 4,11; Ky.*'^ C. 2,20; 8,24; Ark. C. 19,24; Tex.^ C. 3,8; Col. C. 7,12; Miss.** C. 4,39 ; La. C. 194. (b) In many others, they are to be tried by the legislature in joint session : KH." C. 2,42 ; Mass." C. 2,2,1,3 ; Me." C. 5,1,3 ; Vt.° C. Amt. 9 ; RI> C. 8,7 ; Va.*^ C. 4,2 ; W.Va/ C. 7,3 ; . N.C." C. 3,3 ; Mo.-^ C. 5,25 ; Ark.« C. 6,4 ; Tex.« C. 4,3 ; Col." C. 4,3. So, in several others, by the legislature in the manner by law pro- vided : Ind.-^ C. 5,6 ; 111." C. 5,4 ; lo.^ C. 4,5 ; Neb." C. 5,4 ; Ky.^ C. 3,24 ; Tenn.<^ C. 3,2 ; Mo. ; « Ore.<^ C. 5,6 ; S.C.*^ C. 3,4 ; Ga." C. 5,1,6 ; Ala." C. 5,4 ; Miss."^ C. 5,2. (C) In three states, by a committee of both houses: Pa.* C. 4,2; Del.'" C. 3,2. (D) In one, by the house alone : Md.'' C. 2,4. (E) In many, by the courts of law : Pa.'' C. 8,17 ; Mo.'^ C. 8,9 ; Wash.* 3116 ; Ida.* 1874-75, p. 693,39 ; Wy.* 45,46 ; Uta.* 29 ; N.M.* 1874,29 ; Ariz.* 1384. But in most of the states, the elections of members of each house of the legis- lature are to be determined by such house : N.H. C. 2,35 ; Dak.* Pol. C. 2,9 ; Wy.* 45,44 ; N.M.* 63,59. For other states, see § 270. Notes. — « As to the governor or other executive officers only ; see § 270. ' As to members of the legislature only. ' As to the governor or lieutenant-governor only. '^ Except of the governor, etc., as above. « As to executive oHicers other than governor, etc. § 239. Evidence. In the trial of contested elections, and proceedings for investi- gating thcni, no per.son can refuse to testify on the ground that it will criminate him; but such testimony shall not afterwards be used against him except in proceedings for perjury : Pa. C. 8,10 ; Ark. C. 3,9 ; Col. C. 7,9. Art. 24. The Right of Suffrage. § 240. Citizens" Tlie riglit of suffrage* (subject to the other conditions in this article) is, by tlie Constitutions (or statutes) of all tlie states, given (a) to every male" (see F) citizen of the United States aged twenty-one : N.H.* 29,1 ; Me. C. 2,1 ; P.I. C. 2,1 ; Ct. C. Amt. 8 ; N.J. C. 2,1 ; 0. C. 5,1; Ind. C. 2,2 ; 111. THE RIGHT OF SUFFRAGE. 59 C. 7,1; Wis. C. 3,1, Amt. ; To. C. 2,1 ; Minn. C. 7,1 ; Kan. C. 5,1 ; Neb. C. 7,1 ; Md. C. 1,1 ; Va. C. 3,1 ; N.C. C. 6,1 ; Tenn. C. 4,1 ; Mo. C. 8,2 ; Ark. 0. 3,1 ; Tex. C. 6,2 ; Cal. C. 2.1 ; Ore. C. 2,2 ; Nev. C. 2,1 ; Col. C. 7,1 ; S.C. C. 8,2 ; Ga. C. 2,1,2 ; Ala. C. 8,1 ; Miss. C. 7,2 ; Fla. C. 14,1 ; La. C. 185 ; Territories, U.S. E. S. 1859, 1860 ; Wash.* 3050 ; Dak.* Pol. C. 27,47 ; Ida.* 1874-75, p. 684, § 1 ; Mon.* 1881, p. 68, § 1 ; Wy.* 45,18; Uta.* 40 ; N.M.* 1868,26,2 ; Ariz.* 1347 ; D.C.* 98. So, in California, of any person naturalized ; but lie must have been a United States citizen ninety days before the election. And in one other, one month before: Pa. C. 8,1. (b) And in many states, also to every male of foreign birth, aged twenty-one, who has declared his intention to become a citizen according to the United States naturalization laws : Ind. ; Wis. ; Minn. ; Kan. ; Mo. ; Ark. ; Tex. ; Ore. ; Col. ; Ala.; Fla.; La.; Territories; Dak.*; Mon.*; Wy.* ; Ariz.* 1412. So, in others; but he must have declared such intention (1) at least thirty days before the election : Neb. (2) At least o!ie year, and not more than five years, before : Mo. (3) At least four months before : Col. (C) In many, to every male citizen or inhabitant of the state, aged twenty-one : KH. C. 2,28; Mass. C. 2,1,2,2 ; Amts. 3; Vt.* G2 ; N.Y. C. 2,1 ; Pa. C. 8,1 ; Mich. C. 7,1 ; Del. C. 4,1 ; W.Va. C. 4,1 ; Ky. C. 2,8 ; Miss. ; Wash.* He must have been a citizen ten days : N.Y. In Delaware, he must be aged twenty-two. (D) Indians, aged twenty-one, if civilized, and not a member of any tribe, can vote, in Wisconsin.'^ So, in Micrliigan, if born in the United States. So, in Wisconsin, persons of Indian blood who have once been declared by Congress citizens of the United States, any subsequent act of Congress to the contrary notwithstanding. So, in Minnesota and Wash- ington, persons of mixed white and Indian blood who have adopted the customs and habits of civilization; and Indians also, after an examination by the courts, in Minnesota. But in two, no Indian not taxed can vote : Me. C. 2,1 ; Miss. C. 7,2. And in one, no Indian can vote : R.I. C. 2,4. (e) The Constitutions of seven states restrict the right of suffrage to white persons. See § 22. (F) (See also § 2'3.) In three territories, women vote in all respects like men: Wash.* 1883, p. 39 ; Wy.* .')0,1 ; Uta.* 43. Tlius, in Utah, " every woman aged twenty-one, who has resided in the territory six months, born or naturalized in the United States, or who is the wife, widow, or daughter of a native born or naturalized citizen of the United States, shall be entitled to vote at any election.'' See also § 23. (G) By the Constitution of Wisconsin, the legislature may at any time extend the right of suffrage to persons not here enumerated ; but the law must be approved by a majority of the voters at a general election. Notes. ■ — " In order to give a complete presentation of the subject in this article, the statute pro- visions of a few states which have no constitutional provisions on the subject are also incorporated. '> The right of sutfrage here provided for is tlie right of voting for the state legislature and exeeiitive only ; and statutes pernuttiug women to vote in local elections are, conseipiently, not unconstitutional, <= In other states, it would follow from Articles 1 and 2, that all Indians are citizens, there being no provision to the contrary. § 241. Residence Qualifications." (A) By the Constitutions of a few states, a voter must have been resident a certain period of time in the United States ; thus, in one, ninety days: Cal. (cf. $ 240, A). In two, one year: Ind.^ C. 2,2; Minn. C. 7,1. He must have been a citizen ten days : N.Y. C. 2,1 ; one month : Pa. C. 8,1. In one, he must be horn in the United States, unless he hold a certain amount of real estate in the state (§ 244) : R.I.<= C. 2.1 and 2. (B) And by the Constitutions of nearly all, to vote at a state election, a person qualified according to § 240 must have been resident for a certain period iunnediately preceding the election in the State; thus, in two states, (1) for tliree months : Me. C. 2,1; Mich. C. 7,1 ; Dak.* Pol. C. 27,47; Wy.* 45,18. In one, (2) for four months: Minn. ; Ida.* 1874-75, p. 684, § 1. In many, (3) for six months : N.IL* 29,9 ; Ind. C. 2.2 ; lo. C. 2,1 ; Kan. C. 5,1 ; Neb. C. 7,1 ; Ark. C. 8,2 ; Ore. C. 2,2 ; Nev. C. 2,1 ; N.M.*; 60 POLITICAL CONSTITUTION. Col. C. 7,1 ; Miss. C. 7,2 ; Wash.* 3050 ; Mon.* 1881, p. 68, § 1 ; Uta.* 40. In many others, (4) for one year : Mass. C. Amt. 3 ; Vt.* 62 ; R.I. C 2,1 ; Ct. C. Amt. 8 ; N.Y. ; N.J. C. 2,1 ; Pa. C. 8,1 ; 0. C. 5,1 ; 111. C. 7,1 ; Wis. C. 3,1 ; Md. C. 1,1 ; Del. C. 4,1 ; Va. C. 3,1 ; W.Va. C. 4,1 ; N.C. C. 6,1 ; Tenn. C. 4,1 ; Mo. C. 8,2 ; Ark. C. 3,1 ; Tex. C. 6,2; CaL C. 2,1 ; S.C. C. 8,2; Ga. C. 2,1,2; Ala. C. 8,1; Fla. C. 14,1; La. C. 185 ; Ariz.* 1412 ; D.C.* 98 (in the District). In one, (5) for two years : Ivy. C. 2,8. In one, (6) for two and a half years : Mich. In one state, residence on state land ceded to the United States is not sufficient (compare $ 24.:^) : R.I. C. 2,5. (C) And by the Constitutions of a few states, a person otherwise qualified must, in order to vote at any election, have been resident in the county or legislative district fur a certain period of time before : thus, in two, for ten days : Minn., Ark., Ariz.* In one, for twenty days : Dak.* In several, for thirty days : O.* 2945 ; Del. ; Nev. ; Miss. ; Wash.* ; Ida.* ; Mon.* In a few, for sixty days: lo., W.Va., Mo., S.C. In a few, for three months: 111., Va., N.C, Cah, Ala. lu one, for four months : N.Y. In one, for five months : N.J. In some otiiers, for six months: Md., Tenn., Ark., Tex., Ga., Fla., La. In one, for one year: Ky. In four, " as by law provided : " 0., Neb., Col., Ala. (D) And in tliree, he must have been resident in the city or township sixty days: Pa., Ind., Mo. In five, six months: N.H., Mass., R.I., Ct., Md. In one, thirty days : Kan. In the ward or precinct or election district, five days: Dak.* Ten days : Mich., Minn. In two, twenty days: 0., N.C. In several, thirty days: N.Y., Ind., 111., Wis., Ark., Cal., Nev., Ala., La., D.C* In two, sixty days : Pa. C. 8,1 ; Ky. In one, three months : Me. Notes. — " See § 240, note". ^ If of foreign birth only. <^ In the case of native United States citizens owning no real estate, see § 244. § 242. Losing a Residence, etc. By the Constitutions of many states, (a) no person shall be deemed to have lost a residence for the purpose of voting (or, in Kentucky, Texas, Colorado, for the purpose of holding office ; or in California, Indiana, Wisconsin, Arkansas, for any purpose whatever) by reason of his absence from the state while employed (1) in the service of the United States : " Me. C. 2,1 ; N.Y. C. 2,3; Pa. C. 8,13; lud. C. 2,4; 111. C. 7,4; Mich. C. 7,5; Wis. C. 3,4; Minn. C. 7,3; Kan. C. 5,3 ; Ky. C. 8,12; Mo. C. 8,7; Ark. C. 19,7; Tex. C. 16,9; Cal. C. 2.4; 20,12; Ore. C. 2,4; Nev. C. 2,2; Col. C. 7,4; S.C. C. 8,4; La. C. 193; Wash.* 3051; Ariz.* 1348. (2) Or, in .several, while employed in the service of the state:" Me. ; Pa. ; Ind.; 111.; Mich.; Wis.; Ky. ; Mo.; Ark.; Tex.; Cal.; Ore.; Col. ; La.; Ariz.* 1350. (3) Or, in many, while engaged in the navigation of the waters of this state or of the United States : N.Y., Pa., Mich., Minn., Kan., Mo., Cal., Ore., Nev., S.C, La., Wash.,* Ariz.* (Or, in all these last except Minnesota, of the waters of the high seas.) (4) Or, in two, while temporarily absent from the state : Ark. ; .S.C ; Wash.* '' 3053. (5) Or, while confined in pristjn : N.Y., Pa., Mich., Minn., Kan., Mo., Cal., Ore., Nev., Col., S.C, Wash.,* " Ariz.* (G) Or, while kept at an almshouse or asylutn at the public expense : N.Y., Pa., Mich., Minn., Kan., Mo., Cal., Ore., Nev., Col., S.C, Wash.,* Ariz.* (7) Or, while a student in any institution of learning : N.Y., Pa., Mich., Minn., Kan., Mo., Cal., Ore., Nev., Col., La., Wash.,* Ariz.* (B) And in several states no person shall be deemed to have (gained a residence in the state by reason of his presence, for the various reasons respectively specified in A :" N.Y., Pa., Mich., Kan., Mo., Cal., Ore., Nov., Col., La., Wash.,* Ariz.* So, in Maine, as to case (7) only. Notes. — " E.xccpt when serving out a sentence in the penitentiary for infamous crime. * " Pro- vided the right to vote has not been claimed and exercised elsewhere." § 243. Army and Navy. And in most states it is specially provided that no person shall be deemed to have acquired a residence for the purpose of voting by reason of being stationed in the state while in the military or naval service of the THE RIGHT OF SUFFRAGE. 61 United States : Me. C. 2,1 ; RI. C. 2,4 ; KJ. C. 2,1 ; 0. C. 5,5 ; lud. C. 2,3 ; 111. C. 7,5 ; Mich. C. 7,7 ; Wis. C. 3,5 ; lo. C. 2,4 ; Miun. C. 7,4 ; Neb. C. 7,4 ; Del C. 4,1 ; Va. C. 3,1 ; W.Va. C. 4,1 ; Ark. C. 3,7 ; Ore. C. 2,5 ; S.C C. 8,5 ; Ga. C. 2,1,2 ; Ala. C. 8,1 ; La. C. 164; Territories, U.S. R S. 1860 ; Wash.* 3050 ; Uta.* 41 (unless such territory is, and has been for six months, his permanent domicile : Wash.,* Uta.*). And the same law would seem to he implied (hj^ § 242, B) in a few other states. Tn several, no person in the regular army or navy of the United States can vote (see also below) : Kan. C 5,3; Mo. C. 8,11 ; Tex. C. 6,1 ; Ore. Aiid conversely, no person in the actual military service of the United States is deemed to have lost his right to vote by reason of his absence (in time of war, except in Nevada) ; but a manner in which he may vote is to be provided by the legislature : Me. C. 2,4 ; R.I. C. Arat. 4 ; Ct. C. Amt. 13 ; KY. C. 2,1 ; N.J. 0. 2,1 ; Pa. C. 8,6 ; Mich. C. 7,1 ; Kan. C. 5,3 ; Neb. C. 7,3 ; Nev. C. 2,3 ; Miss. C. 7,6 ; Ariz.* 1407. But in three, only when such person is not in the regular army or navy : Ct., Kan., Neb. § 244. Property Qualification.'' (a) In eight states there is a constitutional provision that there shall be no property qualification for the right of suffrage : Minn. C. 1,17; Kan. C. Bill of Ets. 7 ; N.C. C. 1,22 ; Ark. C. 1,21 ; Cal. C. 1,24 ; Ala. C. 1,38 ; Miss. C. 1,18. (B) But in one, the Constitution declares that every free man has a right to vote "who has a sufficient interest in the community : " Vt. C. 1,8. And in several, there is a pro- vision requiring a voter to have paid certain taxes ; thus, in Georgia, all taxes except for the year of the election : Ga. C. 2,1,2; so, in three, he must have paid a state, county, or city tax within two years previous to the election: Mass. C. Amt. 3 ; Pa. C. 8,1 ; Del. C. 4,1 ; so, in one, he must have paid all poll taxes assessed upim him for a period (1) of two years preceding : R.I. C. 2,3 ; (2) to be prescribed by the legislature : Tenn. C. 4,1. In Utah, no person is deemed a resident (so as to vote) who is not " a taxpayer : " Uta.* 42. So, in New Hampshire, no person can vote who is excused from paying taxes at his own request : N.H. C. 2,28. But in Massachusetts a person can vote who is exempted by law (see Part IV.) frt)m taxation. In Rhode Island, he must have paid a tax to the amount of $1, unless he owns real estate in the state: R.I. C. 2,1 and 2. (C) And in municipal elections, in Texas, to determine the expenditure of money or the assumption of debt, no person can vote who does not pay a property tax in such municipality : Tex. C. 6,3. See also § 372. And in one, no person not born in the United States can vote unless he hold real estate in the state to the net value of S134, or possess real estate with a rental value of $7 : R.I. C 2,1. Note. — « See § 252. § 245. Educational Qualifications of the right of suffrage exist in four states. Thus, in one, no person can vote wlio cannot read the Constitution and statutes of the State: Ct. C. Amt. 11. So, in one other, no person who cannot read the Constitution of the State in English : Mass. C. Amt. 20. And in Massachusetts, no person who cannot write his name. In tvi'o, the legislature are given authority to enact laws requiring an educational qualification (1) after 1880: Fla. C. 14,7 ; (2) after 1890: Col. C 7,3. But" in two, all educational qualifications are expressly forbidden by the Constitution: Ala. C. 1,38; Miss. C. 1,18. For religious qualifications, see § 45. § 246. Challenges. By the Constitution of Georgia, any voter, on being challenged, must make oath that he has complied witli the constitutional requirements: Ga. C. 2,1,2. § 247. General Provisions. In Virginia, all men having sufl[icient evidence of perma- nent common interests with, and attachment to, the community, have the right of suflfrage, and cannot be bound by any law to which they or their representatives have not assented : Va. C. 1,8. 02 POLITICAL CONSTITUTION. Art. 25. Disfranchisement. § 250. General Provisions. The Constitution of South Carolina declares that no per- son shall be deprived of the right of suffrage except (1) by the law of the land or the judg- ment of his peers: " S.C. C. 1,34. Or, (2) except upon conviction by a jury of some infamous crime previously ascertained and determined by law and judgment thereon by a court of com- petent jurisdiction: Tenn. C. 1,5. Or, (3) upon lawful conviction of a felony at common law : Ark. C. 3,2. Note. — " This is probably implied in other states ; see § 130. § 251. Insanity. By the Constitutions of most states no insane person " can vote : K.I. C. 2,4 ; N.J. C. 2,1 ; 0. C. 5,6 ; Wis. C. 3,2 ; lo. C. 2,5 ; Minn. C. 7,2 ; Kan. C. 5,2 ; Neb. C. 7,2 ; Del. C. 4,1 ; Va. C. 3,1 ; W.Va. C. 4,1 ; Ark. C. 3,5 ; Tex. C. 6,1 ; Cal. C. 2,1 ; Ore. C. 2,3 ; Nev. C. 2,1 ; S.C. C. 8,2 ; Ga. C. 2,2,1 ; Ala. C. 8,3 ; Miss. C. 7,2 ; Fla. C. 14,2 ; La. C. 187. So, in many, no idiot:" R.I., N.J., 0., Wis., lo., Minn., Kan., Neb., Del, Va., W.Va., Ark, Tex., Cal., Ore., Nev., S.C, Ga., Ala., Miss., Fla., La. So, in a few, no person under guardianship : Mass. C. Ami. 3; Me. C. 2,1 ; R.I. ; Wis. ; Minn. ; Kan. ; Md. C. 1,2 ; Fla. Note. — " See Glossary. § 252. Poverty. In a few states there are constitutional provisions disfranchising paupers; thus, in eight, that no pauper can vote : N.H. C. 2,28 ; Mass. C. Amt. 3 ; Me. C. 2,1 ; li.l. C. 2,4 ; N.J. C. 2,1 ; Del. C. 4,1 ; W.Va. C. 4,1 ; Tex. C. 6,1. So, in two, no person kept at a poorhouse or asylum at the public expense: Mo. C. 8,8; S.C. C. 8,2. So, in Texas, no pauper supported by any county. Exception. But these provisions do not apply to any person who has served in the United States army or navy in time of war and been honorably discharged : Mass. C. Amt. 28. § 253. Crime. By the Constitutions of most states, no person convicted of infamous'' crime can vote: III.'* C. 2,4; Ct. C. 6,3; N.Y.'' C. 2,2 ; N.J.* C. 2,1 ; 0.<* C. 5,4 ; Ind.'' C. 2,8 ; 111.'' C. 7,7 ; Wis." C. 3,6 ; lo. C. 2,5 ; Minn.-^ C. 4,15 ; Neb.* C. 7,2 ; Md.*-* C. 1,2 ; Del. C. 4,1 ; Va. C. 3,1 ; W.Va. C. 4,1 ; N.C.* C. 6,1 ; Tenn.'' C. 4,2 ; Mo." C. 8,10 ; Tex. C. 6,1 ; Cal. C. 2,1 ; Ore. C. 2,3 ; Nev.*'^ C. 2,1 ; Ga.* C. 2,2,1 ; Ala. C. 8,3 ; Miss. C. 7,2 ; 4,17; Fla." C. 14,4; La. C. 148,187. And in three, no person convicted of " other high crimes : " Ky.'^ C. 8,4; Tex.'' C. 1G,2; Cal.'' C. 20,11; or high misdemeanors: Ky. ; '' ISIiss.'' 12,2. No person "under interdic- tion : " La. So, in several, specially, no person convicted of "felony:" Wis.'"--'' C. 3,2; Minn.*'-'" C. 7,2 ; Kan." C. 5,2 ; N.C. ;'''^ Mo. ; "-^ Ark." C. 3,2 ; Fla." C. 14,2. And in three, no person confined in public prison : Mo. C. 8,8 ; Col. C. 7,10 ; S.C. C. 8,2. Notes. — <» See Glossary. * Unless legally (see §»160 ) restored to the rights of citizenship. <■ Whether the conviction be in the home state or in any other. '^ In these states, the Constitution only provides that the legislature may pass laws to that efTect. « If over the age of twenty-one when convicted. J Tlie word seems here to be used as different in meaning from " infamous crime." § 254. Special Crimes. The Constitution further specifies (1) that no person convicted of larceny can vote : Ct. C. G,3 ; Wis.'' C 3,6 ; Md.*- « C. J. 2 ; Va. C. 3,1 ; Ga." C. 2,2,1 ; Ala. C. 8,3; Fla. C. 0,3; La. (2) No person convicted of forgery : Ct. C. 14,4; Ky. ; '' Tex." C. 10.2; Cal." C. 20,11 ; Miss. C. 12,2 ; La. C. 148,187. (3) No person convicted of trciison : Wis." C 3,2 ; Minn. ; " Neb. ; "■ <^ Va. ; W.Va. C. 4,1 ; Nev."- <^ C. 2,1 ; Ga. ; " Ala. ; La. So, specially, in two states, no person who has ever home arms voluntarily against the United States (if, in Nevada, such person was over eighteen at the time) : Kan.'' C. 5,2 ; Nev. REMOVAL OF OFFICERS. 63 And in Nevada, no person who lield civil or military office under the Confederate States. And in Kansas,'' no person who in any manner voluntarily aided or abetted the Rebellion ; and no one dishonorably discharged from the United States service. Except, in Kansas, persons honorably discharged from the military service of the United States, after April, 18G1, and who had served at least one year therein, are not so disfranchised. And in Nevada, the foregoing provisions cease to apply when an amnesty be granted by the United States Government : Nev. (4) Or of perjury: Ct. ; 0.;'' Minn. -^ C. 4,15; Ky. ; '' Tex.;'' Cal. ; '^ Miss. C. 4,17 ; Fla. ; La. (5) Or of malfeasance in office: Cal., Ga.,*" Ala., La. (6) Or of misdemeanors connected with the right of suffrage : Mo. ;''■ or " illegal voting: " La. (7) Or of embezzle- ment of the public funds : Va., Cal.,'' Ga.,'' Ala., La. (8) Or (^f defrauding the United States, or any State government : Kan.* (9) Or for fraudulent bankruptcy : Ct. For notes, see $ 2.53. § 255. Bribery. By the Constitutions of many states, no person convicted of bribery can vote : E.I.* C. 2,4 ; Ct. C. 6,3 ;. K Y. ; " N.J.<^ C. 2,2 ; O.'' C. 5,4 ; Wis.'' C. 3,6 ; Minn. ;'^ Ky. ;<^ Tex.-^ C. 16,2 ; Cal.'^ C. 20,11 ; Ga. ;'^ Ala. ; Miss. C. 4,17; 12,2 ; Fla. C. 14,4 ; La. C. 147. Whether giving or receiving the bribe : Miss. So, in Kansas,'' no person guilty of giving or oflfering to give or receive a bribe. So, in one, a person convicted of giving or offering a bribe to procure his own election or appointment, or that of any other person : Miss. C. 4,18 ; 12,2. So, in five, no person convicted of bribery at elections, as to both parties : Me.", '' C. 9,13 ; Md. C 1,3 ; Va. ; W.Va. ; Ga. And in three, a person giving or offering or re- ceiving a bribe at an election is disqualified to vote at that election : Vt. C. 2,31 ; N.Y. ; Pa. C. 8,8. No member of the legislature convicted of bribery can vote : Cal. C. 4,35. In Pennsylvania, any person convicted of wilful violation of the election laws is deprived of the right of suffi-age f>r four years: Pa. C 8,9. Notes. — *• '' See § 253, same notes. " For a term not over ten years. § 256. Betting on an Election disqualifies the persons interested from voting at that election : N.Y. ; Wis.'' C. 3,6. And in Florida, laws shall be passed to deprive a person con- victed of so betting of the right of suffi-age absolutely : Fla. C. 14,4. See § 253 for note. § 257. Duelling. By the Constitutions of several states a person is disfranchised by being concerned in a duel in the same cases in the several states respectively that he would be disqualified to hold office (see § 223) : Mich. C. 7,8 ; Wis. C. 13,2 ; Va. C. 3,1 ; Ky. C. 8,20; Tex. C. 16,4 ; Cal. C. 20,2 ; Nev. C. 15,3 ; Miss. C. 1,27; Fla. C. 14,4. And so, a conviction for duelling is cause of disfranchisement : Ct. C. G,3; B.C. C. 8,8. Art. 26. Removal of Officers. § 260. By Impeachment. By the Constitutions of many states, every civil state officer may be impeached : NH. C. 2,38 ; Mass. C. 2,1,2,8 ; Me. C. 9,5 ; Vt. C. 2,24 ; N.J. C. 5,11 ; Pa. C. 6,3 ; 0. C. 2,24 ; Ind. C. 6,7 ; III C. 5,15 ; Mich. C. 12,1 ; Wis. C. 7,1 ; To. C. 3,20 ; Neb. C. 5,5 ; Del. C. 5,2 ; Va. C. 5,16 ; W.Va. C. 4,9 ; Ky. C. 5,3 ; Ark. C. 15,1 ; Nev. C. 7,2 ; Col. C. 13,2 ; Miss. C. 4,28. So, in Kansas, all officers under the Constitution : Kan. C. 2,28. So, in three, all " exec- utive" officers: R.T. C. 11,3; Ct. C. 9,3; S.C. C. 7,3. And in the Constitutions of many, it is specified that the governor may be im- peached : N.H.C. 2,40; R.I.; Ct. ; N.J. ; Pa.: 0. C. 2,24 ; 111.; Wis.; lo. ; Minn. C. 13.1 ; Kan. ; Del. ; Va ; N.C. C. 4,4 ; Ky. ; Tenn. C. 5,4 ; Mo. C. 7,1 ; Ark. ; Tex. C. 15.2 ; Cal. C. 4,18 ; Nev. ; Col. ; S.C. ; Ala. C. 7,1 ; Miss. ; Fla. C. 4,29 ; La. C. 196. So, the lieutenant-governor: Va., Mo., Tex., Cab, Fla., La. So, in several, the secretary of state: Minn., Tenn., Mo., Cal., Ala., La.; so, the treasurer of the state: Minn., Tenn., G4 POLITICAL CONSTITUTIOiV. Mo., Tex., Cal., Ala., La. ; so, the members of the cabinet: Fla. ; the council: N.H. C. 2,63; the auditor of the state: Minn., Mo., Ala.. La.; the comptroller of the state: Tenn., Tex., Cal. ; the attorney-general : Minn., Mo., Tex., Cab, Ala., La.; all attorneys for the state: Tenn., Ark.; the superintendent of education: Mo., Ala., La.; the commissioner of public lands: Tex.; the surveyor-general : Cab; all judicial officers or judges : R.L ; Ct. ; O. ; Md. C. 4,4 ; Va. ; Tenn. ; Nev. ; Cob ; S.C ; La. C. 93 ; all judges of the supreme « courts : lo., Minn., Tenn., Mo., Ark., Tex., Cab, Ala., Fla.; all judges of the superior" courts: lo., Minn., Mo., Ark., Tex., Cab, Fla.; all judges of the criminal court: Mo.; all judges of the Court of Appeals: Tex. ; all chancellors : Tenn., Ark. Any such officer may be impeached within two years after his term of office expired : N.J. The Constitution forbids iinpcacbment of public officers: Ore. C. 1,19. Note. — " See § 551 and note. § 261. The Causes of Impeachment are (a) in many states, crime. Thus in detail (for citations, see also in § 260) : — (1) Crime (generally) : Ind., Mich., Wis., Minn., Ya., W.Va., Mo., Ark., Cob, La. (2) Misdemeanors (generally) : Mich., Wis., Minn., Va., W.Va., Mo., Ark., Cob, La. (3) Any high crhne in office : Del. C. 5,2; Tenn.; Miss. (4) Any misdemeanor in office : Me.,Pa.,0., lib, To., Kan., Neb., Deb, Ky., Cab, Nev., Miss., Fla. (.5) Any offence involving moral tur- pitude, committed while in office, or connected therewith : Ala. (6) Treason: Deb, Miss. (7) Bribery: N.H. C. 2,38 ; Deb; Miss. (8) Habitual drunkenness : ]\Io., Ala., La. Drunken- ness, at any time or place; Neb. C. 14,3; Fla. C. 1C,9. (9) "Other dissipations:" Fla. Conduct detrimentary to morals : Fla. " Gross immorality : " W.Va. (10) Gambling: Fla. (B) In several, (1) malfeasance or misconduct in office : N.H. ; Mass. C. 2,1,2,8; lo. ; Mo.; Ark.; Nev.; Cob; S.C. C. 2,31; Fla.; La. (2) Corruption in office: N.H., Mich., Wis., Minn., Va., W.Va., Ala., La. Or "favoritism:" La. (3) Extortion in office : La. Oppression in office : Mo., La. (4) Neglect of official duties: Ind., Va., W.Va., S.C, Ala. (.5) "Maladministration:" N.H. ; Mass.; Vt. C. 2,24 ; Va. ; W.Va. (C) (1) Incompetency: W.Va., Ala., Fla., La. (2) Incapacity, mental or physical: Ind., S.C. § 262. Process of Impeachment. (a) By the Constitutions of all but Nebraska and Oregon, the impeachment is first made by the House of Repre- sentatives : N.H. C. 2,17 ; IMass. C. 2,1,3,6 ; Me. C. 4,1,8 ; Vt. C. Amt. 25,3 ; R.I. C. 11,1 ; Ct. C. 9,1 ; N.Y. C. 6,1 ; N.J. C. 6,3,1 ; Pa. C. 6,1 ; 0. C. 2.23 ; Ind. C. 6,7 ; 111. C. 4,24 ; Mich. C. 12,1 and 2 ; Wis. C. 7,1 ; To. C. 3,19 ; Minn. C. 4,14; Kan. C. 2,27; Md. C. 3,26; Del. C. 5,1; Va. C. 5,16; W.Va. C. 4,9; N.C. C. 4,4; Ky. C. 5,1 ; Tenn. C. 5,1 ; Mo. C. 7.2 ; Ark. C. 15,2 ; Tex. C. 15,1 ; Cal. C. 4,17 ; Nev. C. 7.1 ; Col. C. 13,1 ; S.C. C. 7,1 ; Ga. C. 3.6.3; Ala. C. 7,1 ; Miss. C. 4,27; Fla. C. 4,29 ; La. C. 197. In most, a majority of a quorum seems to be sufficient for impeachment in the hoiise as in ordinary votes (sec § 304) : N.II., Mass., Me., Ct., Ind., lo., Kan., Va., W.Va., N.C, Ky., Tenn., Mo., Ark., Tex., Cal., Ga., Ala., La. But in a few, a majority of the members elected : N.Y., N.J., 0., lib, Mich., Wis., Minn., Md., Nov., Cob In two, a vote of two thirds of the members present: Miss., Fla. In five, a vote of two thirds of the members elected : Vt., R.I.," Ind., Dob, S.C. And the impeachment is then, in all these states but New York, tried by the Senate, sitting as a court, under oath : N.H. ; Mass. C. 2,1,2,8 ; Me. C. 4,2,7 ; Vt. C. Amt. 7 ; K.I. C. 11,2 ; Ct. C. 9,2 ; N.J. ; Pa. C. 6,2 ; 0. ; Ind. ; 111. ; Mich. ; Wis. ; lo. ; Minn. ; Kan. ; Md. ; Del. ; Va. ; W.Va. ; N.C. C. 4,3 ; Ky. C. 5,2 ; Tenn. C. 5,2 ; Mo. ; Ark.; Te.K. C. 15,2; Cab; Nov.; Cob; S.C. C. 7,2; Ga. C. 3,5,3; Ala.; Miss.; Fin. ; La. So, in New York, it is tried by the Senate and the judges of the Court of Appeals. Two thirds of the senators elected must, in many states, concur to convict of the impeachment : ILL, N.J., 0., Ind., 111., Mich., Kan., Md., Deb, W.Va., Cab, Nov., Col., REMOVAL OF OFFICERS. 65 S.C, La. In others, two thirds of the senators present : Me. ; Vt. ; Ct. ; N.Y. ; Pa. ; Wis.; lo. ; Minn.; Va. ; N.C. ; Ky. ; Tenn. ; Mo.; Ark. ; Tex. C. 15,.3; Ga. C. 3,5,4; Miss. C. 4,29 ; Fla. ; La. In four, a vote of a quorum, as in other cases (see § 304) : N.H., Mass., Ala., Miss. (B) But in one state, the impeacliment is first made by the legishiture in joint convention upon resolution in either house; and a majority of elected members must concur ; and it is then tried by the judges of the Supreme Court : Neb. C. 3,14. Note. — " When tlie governor is impeached, only. § 263. The Effect of Impeachment is, b}' the Constitutions of all but Mary- land and Oregon, merely to remove from office, and in all these states except Rhode Island, Indiana, Michigan, South Carolina, [in North Carolina and Mon- tana, or\ to disqualify the person impeached from holding any other state office: N.H. C. 2,39; Mass. C. 2,1,2,8; Me. C. 4,2,7; Vt. C. Amt. 7; E.I. C. 11,3; Ct. C. 9,3; N.Y. C. 6,1 ; N.J.« C. 6,3,3 ; Pa. C. 6,3 ; 0. C. 2,24; 111. C. 4,24; Mich. C. 12,2; Wis. C. 7,1; lo. C. 3,20; Minn. C. 13,1 ; Kan. C. 2,28; Neb. C. 3,14 ; Del. C. 5,2 ; Va. C. 5,16 ; W.Va. C. 4,9 ; N C. C. 4,3 ; Kv. C. 5,3 ; Tenn. C. 5,4; Mo. C. 7,2; Ark. C. 15,1; Tex. C. 15,4; Cal. C. 4,18 ;" Nev. C. 7,2 ; Col. C. 13,2; S.C. C. 7,3; Ga. C. 3,5,5; Ala.* C. 7,4; Miss. C. 4,30; Fla. C. 4,29 ; La. C. 197. In many, when an officer is impeached, he is at once suspended from his office until acquitted: R.L C. 11,2; N.Y.;« N.J." C. 6,3,2; Mich." C. 12,4; Wis." C. 7,1; Minn. C. 13,3 ; Neb. ; Tex. C. 15,5 ; S.C. C. 7,1 ; Fla. C. 16,9; La. C. 198. In Tennessee the legislature has no power to relieve the person impeached from the above penalties (and see also $ IGO). Notes. — « Of judicial officers only. » But such disqualification only lasts during the term for which he was elected or appointed. § 264. Trial at Law. A person impeached, whether convicted or not on the impeachment, is nevertheless liable, by the Constitutions of all but Indiana and Maryland, to indictment, trial, and punishment according to law : N.H. ; Mass. ; Me. ; Vt. C. Amt. 7 ; R.I. ; Ct. ; N.Y. ; N.J. ; Pa. ; 0. ; 111. ; :\lich. ; Wis. ; lo. ; Minn. ; Kan. ; Neb. ; Del. ; Va. ; W.Va. ; N.C. ; Ky. ; Tenn. ; Mo. ; Ark. ; Tex. ; Cal. ; Nev. ; Col. ; S.C. ; Ga. ; Ala. ; Miss. ; Fla. ; La. C. 197. For citation.s, see § 263. § 265. Removal by Address. Certain officers may, hy the Constitutions of many states, be removed (A) by the legislature; thus, in many states, judges of the supreme or superior courts : R.L C. 10,4 ; 0. C. 4,17 ; Wis. C. 7,13 ; Kan. C. 3,15 ; Va. C. 6,23 ; W.Va. C. 8,18 ; N.C. C. 4,31 ; Cal. C. 6,10 ; Nev. C. 7,3. In a few, all judicial officers : 0. ; Nev. ; 111. C. 0,30. In one, judges of the supreme court : N.Y. C. 6,11. In one, all civil officers : La. C. 152. In New York, all other judicial officers than as above, on recommendation of the governor, by vote of two thirds of the senate elected. In a few, a two-thirds concurrent vote of both houses elected is necessary : N.Y., 0., Wis.,« Kan., W.Va., N.C, Cal., Nev., La. In Illinois, a three-fourths vote. In two, a majority vote of elected members in joint committee : R.L, Va. (b) By the governor (or governor and council), upon the address of both houses of the legislature (and in Connecticut, Pennsylvania, Michigan, Mar}'- land, Delaware, Kentucky, Missouri, Texas, Oregon, South Carolina, Mississippi, Louisiana, two thirds of each house must concur) ; thus, (1) in many states, all judicial officers or judges : N.H. C. 2,73; Mass. C. 2,3,1 ; Pa. C. 5,15; Mich. C. 12,6; Md. C. 4,4; Del. C. 6,14; Mo. C. 6,41 ; Tex. C. 15,8; S.C. C. 7,4. 5 66 POLITICAL CONSTITUTION. (2) The judges of the supreme and superior courts : Ct. C. 5,3 ; Ky. C. 4,3 and 23 ; Ark.« C. 15,3; Ore. C. 7,20 ; Miss. C. 4,31 ; La. C. 93. (3) All state officers : Me. C. 9,5 ; S.C. ; La. C. 199. (4) Prothonotaries, registers, and clerks of the probate court: Del. C. 7,4. (.5) The auditor, treasurer, secretary of state, attorney-general, and chancellors : Ark. (G) The attorney-general : Del., Ore. (C) In one state, by the governor, on address of two thirds of the full senate, all officers elected by the people except members of the legislature and judges: Pa. C. 6,4. The Causes of Removal of officers under this section are by the Constitutions specified to be (1) any reasonable cause: Pa., Mich., Nev., S.C, Miss., La. (2) Misbehavior in office: Pa., Ore. (3) Any infamous crime: Pa. (4) Incompetence: W.Va., Ore. (5) Neglect of duty : Ore., S.C. (6) Age : W.Va. (7) Mental or bodily infirmity : W.Va., N.C., Mo. (8) Corruption in office : Ore. Note. — "On address of two thirds of the elected members. § 266. Removal by the Governor. So, in many States, certain officers (A) by the governor alone; as, namely: — (1) Any officer whom he has power to appoint (^ 210) : Pa. C. 6,4 (except judges) ; 111. C. 5,12; Neb. C. 5,12 ; Md. C 2,15; W.Va. C. 7,10; Col. C. 4,6. (2) All officers not legislative or judicial : Mich. C. 12,8 ; Ariz* 1097. (3) Judges : Md. C. 4,4. (4) Sherifi's : N^Y. C. 10, i ; Wis. C. 6,4. (5) Coroners: N.Y., Wis. "" (6) District-attorneys: N.Y., Wis. (7) County clerks : N.Y. (8) Registers of deeds : Wis. (B) In two states, by the governor, witli the concurrence of the senate, all officers appointed by the governor may be removed : Fla. C. 4,29. So, in California, by the senate on recom- mendation of tlie governor, judges of inferior courts: Cal. C. 6,10. The causes of removal under this section are specified to be (1) incompetency: 111. ; Neb. ; ]\I.l. ; W.Va. C. 7,10; Col. (2) Malfeasance in office : 111., Neb., W.Va., Col. (3) Mis- conduct: Md., W.Va. (4) Neglect of duty: 111., Neb., W.Va., Col. (5) Conviction in a court of law of incompetency, misbehavior, or neglect in office, or any crime (as to judges only): Md. (6) Gross iuimorality : W.Va. § 267. Removal by the Courts. In a few states, certain officers may be removed (A) by the judges of the supreme court. Thus, (] j judges of the superior court : Tex. C. 15,6 ; Ala. C. 7,2 ; La. C. 200. (2) All officers nut liable to impeachment : Tenn. C. 5,5. (3) Any judge (except those mentioned in $ 260) : Ind. C. 7,12 ; Ala. (4) Any prosecuting attorney : lud. (B) By the judges of the superior courts, (1) minor officers: Ala. C. 7,3; La. C. 201. (2) County or town officers: Ark. C. 7,27: Tex. C. 5,24; Ala.; Miss. C. 6,26; La. (3) County judges, attorneys, clerks of court, and justices of the peace: Tex. C. 5,24; Ala. (C) In Oregon, all officers may be tried for incompetence, corruption, malfeasance or delin- quency in office, as for criminal offences; and judgment may be rendered for dismissal from office: Ore. C. 7,19. § 258. Other Removals from OfHce. The Constitutions of other states provide that the legislature may provide for the removal of inferior officers from office, for malfeasance or nonfeasance of their duties: Minn. C. 13,2; Mo. 14,7; Nev. C 7,4; Col. C. 13,3; S.C. C. 2,31. So, in West Virginia, for official misconduct, incompetency, neglect of duty, or gross immorality : W.Va. C. 4,6. So, in Texas, for any cause : Tex. C. 15,7. Art. 27. The LegiGlature.* § 270. General Provisions. The Constitutions of all the states provide that each house of the legislature shall judge of the qualifications, elections, and returns of its members:" N.H. C. 2,22 and 35; Mass. C. 2,1,2,4; 2,1,.3,10 ; Me. C. 4,1,5 ; 4,2,5 ; 4,3,3 ; Vt. C. 2,9 ; Amt. 6 ; RI. C. 4,6 ; Ct. C. 3,6 ; N.Y. C. 3, 10 ; N.J. C. 4,4,2 ; Pa. C. 2,9 ; O. C. 2,6 ; Ind. C. 4,10 ; 111. C. 4,9 ; Mich. C. 4,9; Wis. C. 4,7; lo. C. 3,7; Minn. C. 4,3; Kan. C. 2,8; Neb. C. 3,7; Md. C. 3,19 ; Del. C. 2,6 ; Va. C. 5,7 ; W.Va. C. 6,24 ; N.C. C. 2,22 ; Ky. C. 2,20 ; THE LEGISLATURE. 67 Tenn. C. 2,11 ; Mo. C. 4,17 ; Ark. C. 5,11 ; Tex. C. 3.8 ; Cal. C. 4,7 ; Ore. C. 4,11 ; Nev. C. 4,6 ; Col. C. 5,10 ; S.C. C. 2,14 ; Ga. C. 3,7,1 ; Ala. C. 4,8 ; Miss. C. 4,10 ; Fla. C. 4,6 ; La. C. 23 ; Dak.* Pol. C. 2,9 ; KM.* 63,35 ; Ariz.* 1110. lu most states, that each house shall choose its own officers : N.H. C. 2,22 and 37 ; Mass. C. 2,1,2,7 ; 2,1,3,10 ; Me. C. 4,1,7 ; 4,2,8 ; Vt. ; RI. C. 5,2 ; 6,4 ; Ct. C. 3,7; N.Y. ; N.J. C. 4,4,3; Pa.; 0. C. 2,8; Ind. C. 2,10; 111.; Mich.; Wis. C. 4,9 ; To. ; Minn. C. 4,5 ; Neb. ; Md. ; Del. C. 2,5 ; Va. C. 5,7 ; W.Va. ; N.C. C. 2, 18-20 ; Ky. C. 2,7 and 10 ; Tenn. ; Mo. ; Ark. ; Tex. C. 3,9 ; Cal. ; Ore, ; Nev. ; Col. ; S.C. C. 2,15 ; Ga. C. 3,5,2 ; 3,6,2 ; Ala. ; Miss. ; Fla. ; La. ; Ariz. * Except, ill many, the president of the senate, which place is filled (1) by the lieutenant-governor: Vt. ; Ct. C. 4,13; N.Y. ; Pa.; 0. C. 3,16; Ind.; 111.; Mich.; Wis. ; lo. C. 4,18 ; Minn. ; Neb. ; Va. ; N.C; Tex. ; Nev. ; Col. ; Miss. C. 4,11 ; Fla. ; La. See also § 282. (2) By the governor or lieutenant-governor: R.I. C. 6,2. (3) If neither, by the secretary of state : R.I. C. 6,3. In all states, that each house shall determine the rules of its own proceedings : N.H. ; Mass. ; Me. C. 4,3,4 ; Vt. ; R.I. C. 4,7 ; Ct. C. 3,8 ; N.Y. ; N.J. ; Pa. C. 2,11 ; O. C. 2,8 ; Ind. ; III ; Mich. ; Wis. C. 4,8 ; lo. C. 3,9 ; Minn. C. 4,4 ; Kan. ; Neb. ; Md. ; Del. C. 2,7 ; Va. ; W.Va. ; Ky. C. 2,21 ; Tenn. C. 2,12 ; Mo. ; Ark. C. 5,12 ; Tex. C. 3,11 ; Cal. C. 4,9 ; Ore. ; Nev. ; Col. C. 5,12 ; S.C. ; Ala. C. 4,11 ; Miss. C. 4,14 ; Fla. ; La. ; Ariz.* Note. — « See U.S. C. 1,2 and 3 and 5. See § 240, note « § 271. Quorum.'' By the Constitutions of nearly all, (A) a majority of elected members in either house constitutes a quorum : * Me. C. 4,3,3 ; Vt. C. 2,9 ; Arat. 6 ; EJ. C. 4,6 ; Ct. C. 3,7 ; N.Y. C. 3,10 ; N.J. C. 4,4,2 ; Pa. C. 2,10 ; 0. C. 2,6 ; 111. C. 4,9 ; Mich. C. 4,8 ; Wis. C. 4,7 ; lo. C. 3,8 ; Minn. C. 4,3 ; Kan. C. 2,8 ; Neb. C. 3,7 ; Md. C. 3,20 ; Del. C. 2,6 ; Va. C. 5,6 ; W.Va. C. 6,24 ; N.C. C. 2,2; Ky. C. 2,19 ; Mo. C. 4,18 ; Ark. C. 5,11 ; Cal. C. 4,8 ; Nev. C. 4,13 ; Col. C. 5,11 ; S.C. C. 2,14 ; Ga. C. 3,4,4 ; Ala. C. 4,10 ; Miss. C. 4,12 ; Fla. C. 4,8 ; La. C. 32. But in some, two thirds is necessary: Ind. C. 4,11; Tenn. C. 2,11 ; Tex. C. 3,10; Ore. C. 4,12; Ariz.* 1116. And in one state, a majority is a quorum in the house ; but when less than two thirds are present, a two-thirds vote is necessary to any act or proceeding; and in the senate thirteen are necessary to a quorum, and when less than sixteen are present, a vote of teu is necessary : N.H. C. 2,20 and 37. And in one other, sixteen members constitute a quorum in the senate, and one hundred in the house : Mass. C. 2,1,2,9 ; Amts. 22. (b) But a smaller number than a quorum may generally adjourn from day to day and compel the attendance of absent members : Mass., IVIe., E.I., Ct., N.J., Pa., 0., Ind., Mich., Wis., lo., Minn., Md., Del., Va., W.Va., Ky., Tenn., Mo., Ark., Tex., Cal., Ore., Nev., Col., S.C, Ga., Ala., Miss., Fla., La., Ariz.* Notes. — " So in U.S. C. 1,5. ^ But there are often special provisions for finance bills ; see Chaps. 2 and 3. See § 240, note ° § 272. Speech in the Legislature. The Constitutions of most states provide that no member of the legislature for any speech or debate in eitlier house shall be questioned elsewhere : Me. C. 4,3,8 ; 'P.I. C. 4,5 ; Ct. C. 3,10 ; NY^ C. 3,12 N.J. C. 4,4,8 ; Pa. C. 2,15; 0. C. 2,12 ; Ind. C. 4,8 ; 111. C. 4,14 ; Mich. C. 4,7 Minn. C. 4,8 ; Kan. C. 2,22 ; Md. C. Decln. of Pts. 10 ; Del. C. 2,11 ; Va. C. 5,11 W.Va. C. 6,17; Ky. C. 2,25; Tenn. C. 2,13; Mo. C. 14,12; Ark. C. 5,15; Tex 68 POLITICAL CONSTITUTION. C. 3,21; Ore. C. 4,9; Col. C. 5,16; Ga. C. 3,7,3; Ala. C. 4,14; La. C. 26; Ariz.* 1118. So, in many, that speech in the legislature can be the foundation of no prosecution or action whatever, civil or criminal, in any other court or place : N.H. C. 1,30; Mass. C. 1,21 ; Vt. C. 1,14; Wis. 0. 4,16; Neb. C. 3,23; Md. C. 3,18. § 273. Freedom from Arrest, (a) By the Constitutions of most states, state senators and representatives are privileged from arrest, in all cases except treason, felony, and breach of the peace, (1) during the session of the legislature : Me. C. 4.3,8; N.J. C. 4,4,8; Pa. C. 2,15; 0. C. 2,12; Ind. C. 4,8 ; 111. C. 4,14; lo. C. 3,11; Minn. C. 4,8; Kan. C. 2,22; Neb. C. 3,12; Del. C. 2,11; Va. C. 5,11; W.Va. C. 6,17 ; Ky. C. 2,25 ; Tenn. C. 2,13 ; Mo. C. 14,12 ; Ark. C. 5,15 ; Tex. C. 3,14; Ore. C. 4,9; Col. C. 5,16; S.C. C. 2,17; Ga. C. 3,7,3; Ala. C. 4,14; Miss. C. 4,19 ; La. C. 26 ; Dak.* Pol. C. 2,3; Uta.* 9. (2) In going to and returning from the legislature : Me., X.J., Pa., 0., Ind., 111., To., Minn., Kan., Del., Ky., Tenn., Ark., Tex., Ore., Col., S.C, Ga., Ala., La., Uta.* (.'i) For fifteen days before and after the session of the legislature: Neb-, Mo., Cal., Miss. So, in two, ten days before and after: W.Va., S.C. (4) In some, they are so privileged from arrest (except as above) at all times while members of tlie legislature : Mich. C. 4,7; Wis. C. 4,15; Cab C. 4,11; Ariz.* 1118. Exceptions. Tliis privilege does not, in three states, prtitect from arrest in cases of viola- tion of the oath of office (§ 224) : Pa., Cob, Ala. (B) In two, they cannot be arrested or held to bail upon mesne process during their attend- ance upon, going to or returning from, the legislature : N.H. C 2,21 (this is ambiguous, but $ 22 seems to confine the word arrest to arrests for debt) ; Mass. C. 2,1,3,10 (the privilege is here confined to the House of Representatives, by the letter of the Constitution). And it is further provided, in a few states, that members of the legislature are not 8ul)jcct to any civil process during the session of the legislature, and (1) for fifteen days before such session and after its termination : Ind., Mich. ; Wis. ; Kan. ; Va. ; Cal. ; Ore. ; Xev. C. 4,11 ; Ariz.* (2) For fifteen days before the session : Ind. No suit at law can be maintained against them during the session : Uta.* So, in one, their persons are free from arrest and their property from attachment on any civil action during the session and for two days before and after it : R.I. C. 4,.'>; and in one other, they are free from arrest in civil process during the session and for four days before and after: Ct. C. 4,10. § 274. Open Sessions. The Constitutions of nearly all the states provide that the doors of each house of the legislature shall be open, or that the proceedings shall be public : N.H. C. 2,8 ; Vt. C. 2,13 ; Ct. C. 3,11 ; N.Y C. 3,11 ; Pa. C. 2,13 ; O. C. 2,13; Ind. C. 4,13; 111. C. 4,10; Mich. C. 4,12; Wis. C. 4,10; To. C. 3,13; Minn. C. 4,19; Neb. C. 3,8; Md. C. 3,21; Del. C. 2,9; Tenn. C. 2,22; Mo. C. 4,19; Ark. C. 5.13; Tex. C. 3,16; Cal. C. 4,13; Ore. C.4,14; Nev. C. 4,15 ; CoL C. 5.14; S.C. C. 2,27; Ala. C. 4,15 ; Miss. C. 4,15 ; Fla. C. 4,11 ; Ariz.* 1113. Except (I) such occasions as may, in the opinion of Hie House, require secrecy : N.II., Vt., Ct., N.Y., Pa., 0.,« Ind., lib, Mich., Wis., lo., Minn., Neb., Md., Del., Tenn., Mo., Ark., Cab, Ore., Col., S.C, Ala., Miss., Ariz.* Or (2) except the senate when in e.\ecutive session : Tex., Nev., Fla. And in a few it is also required that the doors of either house should be open when sitting as committee of the whole : Pa., 111., Neb., Md., Deb, Tenn., Ark., Ore., Cob, Misa. KoTR. — " In the o])inion of two tliirds of tliose present. § 275. Journals The Constitutions of all the states but Massachusetts pro- vide (A) that each house of the legislature shall keep a journal of its proceed- THE LEGISLATURE. 69 ings:" KH. C. 2,24; Me. C. 4,3,5; Vt. C. 2,14; E.I C. 4,8; Ct. C. 3,9; N.Y. C. 3,11; N.J. C. 4,4,4; Pa. C. 2,12; 0. C. 2,9; Ind. C. 4,12; 111. C. 4,10; Mich. C. 4,10 ; Wis. C. 4,10 ; lo. C. 3,9 ; Minn. C. 4,5 ; Kan. C. 2,10 ; Neb. C. 3,8; Md. C. 3,22; Del. C. 2,8; Va. C. 5,10; W.Va. C. 6,41; N.C. C. 2,16; Ky. C. 2,22 ; Tenn. C. 2,21 ; Mo. C. 4,42 ; Ark. C. 5,12 ; Tex. C. 3,12 ; Cal. C. 4,10; Ore. C. 4,13; Nev. C. 4,14; Col. C. 5,13; S.C. C. 2,26; Ga. C. 3,7,4; Ala. C. 4,13 ; Miss. C. 4,14 ; Fla. C. 4,10 ; La. C. 28 ; Dak.* Pol. C. 2,12 ; Ariz.* 1111. And, in all these states except Oregon, publish the same. But, in one, they are only to publish it when required by one fifth of the members : Ct. Except they need not print such parts as may require secrecy : " Me., Ct., N.Y., Pa., Mich., Wis., Neb., Del., Tenn., Ark., Col., S.C, Ala., Miss., Ariz.* (B) The yeas and nays of the members of either house voting on any question shall, in some states, be always entered on the journal (see also § 304) : lo.* C. 3,38 ; Minn. ; Kan. ; W.Va.* C. 6,44 ; Tenn." C. 4,4 ; Ark.* C. 4,14 ; Cal. ;* S.C* C 2,24. So, in three, at the request of any one member: N.H., Vt., Del. So, in several, at tiie request of two members in either house: Pa.; 0.; lud. ; lo. C. 3,10; Neb.; Ky. ; Mo.; Ore. ; Col. ; S.C. So, in one, at the request of two in the senate, or five in the house : 111. So, in four, at the request of three in either house : Tex., Cal., Nev., Fla. So, in three, at rhe request of five in either house: Md., Tenn., Ark. So, in one, at the request of one sixth of the members present in either house : Wis. C. 4,20. In many, at the request of one fifth of the members present in either : " Me. ; R.I. ; Ct. ; N.J. ; Va. ; N.C. C. 2,26 ; Ga. C. 3,7,6 ; La. C. 34. lu one, of one fifth of the members elected in either: Mich., Ariz.* In three, of one tenth of those present: W.Va., Ala., Miss. In one, whenever the Constitution requires a two- thirds vote : Ga. C. 3,7,21. Any member may dissent from or protest against any act or proceeding he may deem injurious to the public, and have the reasons for his dissent entered on the journal : N.H. ; Vt. ; 0. C 2,10 ; Ind. C. 4,26 ; Mich. ; lo. ; Kan. C 2,11 ; N.C. C. 2,17 ; Tenn. C. 2,27 ; Ore. C 4,26 ; S.C. ; Ala. ; Ariz.* So, in two, any two or more members : 111., Minn. C. 4,16. Notes. — " So in U.S. C. 1,5. ^ Ouly, in these states, of votes on elections. § 276. Expulsion of Members, etc. By the Constitutions of most states, either house of the legislature may expel any of its members by a vote of two thirds of the elected members r'* Me. C. 4,3,4; R.I. C. 4,7; Ct. C. 3,8; N.J.* C. 4,4,3; Pa.^ C. 2,11; 0.* C. 2,8; Ind.* C. 2,8; 111. C. 4,9; Mich. C. 4,9; Wis. C. 4,8 ; lo.* C. 3,9 ; Minn.* C. 4,4 ; Neb. C. 3,7 ; Md. C. 3,19 ; Del.* C. 2,7 ; Va.* C. 5,7 ; W.Va.* C. 6,25 ; Ky.* C. 2,21 ; Tenn.* C. 2,12 ; Mo. C. 4,17 ; Ark.* C. 5,12 ; Tex.* C. 3,11 ; Cal. C. 4,9 ; Ore.* C. 4,15 ; Nev. C. 4,6 ; Col.* C. 5,12; S.C* C. 2,15 ; Ga.* C. 3,7,1 ; Ala.* C. 4,11 ; Miss.'^ C. 4,14; ria.<^ C. 4,6 ; La. C. 23 ; Ariz.* 1110. So, in one, by a majority vote of a quorum : Vt. C. 2,9. But no member can, in many, be expelled a second time for the same cause : Me., II.I., Ct., Pa., 0., Ind., 111., Mich., Wis., lo., Minn., Neb., Md., W.Va., Ky., Tenn., Mo., Ark., Tex., Ore., Col., S.C, Ala., Miss., Ariz.* Nor, in two, for any cause known to his constituents before his election : Vt., Mich., Ariz.* The reasons for the expulsion must, in two, be entered on the journal with the names of the members voting : Mich., Ariz.* In four, a member expelled for corruption is not thereafter eligible for either house : Pa. ; Ark.; Col. ; Ala. C. 4,12. Each House has, in most states, power to punish its members for disorderly con- duct : Me., Pt.L, Ct., N.J., Pa., 0., Ind., 111., AVis., lo., Minn., Md., Del, Va., W.Va., Ky., Tenn., Mo., Ark., Tex., Ore., Nev., Col., S.C, Ala., Miss., Fla, lA., Dak.* Pol. C. 2,4; Ariz.* 1120. And in many, either House may punish any person not a member for disorderly or 70 POLITICAL CONSTITUTION. contemptuous conduct, such punishment not to extend beyond final adjournment of the session : Me. C. 4,3,6 ; W.Va. C. 6,26 ; Nev. C. 4,7 ; S.C. C. 2,16 : Ga. C. 3,7,2 ; Miss. C. 4,15; Fla. C 4,7; Dak.*; Ariz.* In five, such punishment is to be by imprisonment: N.H. C. 2,22-23 ; Mass. C. 2,1,3,10- IJ ; Me.; Teuu. C. 2,14 But not over thirty days: Mass. Not over ten days: N.H. ; Md. C. 2,23; Mu. ; La. C. 24. Not over twenty-four hours at a time: Ind. C. 4,15; 111.; Miun. C. 4,18; Neb.; Ore. C. 4,16. No time is specified: Wis., Col., Ala. Not over forty-eight hours: Tex. C. 3,15. The House may commit any person to gaol for crime, until duly released by law : Md. C. 3,24. Notes. — *■ See U.S. C. 1,5. * The provision is ambiguous ; as it does not appear whether "two thirds " means two tliirds of a quorum, or of the full house elected. " Two thirds of the members present. § 277. Time of Session. (See § 240, note °.) There is in three states a general provision of the Constitution that the legislature should be frequently convened : Mass. C. 1,22; Md. Decln. of Rts. 12; S.C. C. 1,27. The regular session of the legislature is, in one state, twice a year : R.I. C. 4,3 Amt. 3 ; in four states, once each year : Mass. C, Amt. 10 ; N.Y. C. 3,2 ; N.J. C 4,1,3 ; S.C. C. 2,12 ; in many states and most territories once every two years thus, in the even year: Vt. C. Amt. 24,1 ; 0. C. 2,25 ; Md. C. 3,14"; Va. C. 5,6 Ark. C. 5,5 ; Ore. C. 4,10 ; Ga. C. 3,4,3 ; Ala. C. 4,5 ; Stats. 32 * ; Miss. C. Amt, 4; La. C. 21; Ida.* 1879, p. 31, § 1 ; Wy.* 1879,52; Uta.* 8 ; KM.* 1884,82 U.S. R. S. 1846 ; and in others, in the odd year : N.H. C. 2,9 ; Me. C. Amt. 23 Ct. C. Amt. 27 ; Pa. C. 2,4; Ind. C. 4,9 ; 111. C. 4,9 ; Mich. C. 4,33 ; Wis. C. 4,11, Amt. Stats.* ; 99, Amt. ; lo. C. 3,2 ; Minn. C. 4,1 ; Kan. C. 2,25 ; Neb. C. 3,7 and 3; Del C. 2,4; W.Va. C. 6,18; N.C. C. 2,2; Ky. C. 2,18; Tenn. C. 2,8; Mo. C. 4,20 ; Ark.* 1875,39,1 ; Tex. C. 3,5 ; Cal. C. 4,2 ; Nev. C. 4,2 ; 17,12 ; Col. C. 5,7; Fla. C. 4,2 ; Wash.* 1883, p. 62; Dak.*; Mon.* U.S. 1876,287; G. L. 793; N.M.*; Ariz.* 1125. But often there are adjourned sessions held in the inter- vening year. In Pennsylvania, such adjourned sessions are, however, prohibited. Beginning, in a number oi states, on the first Monday in January: 0., Tenn., Cal., Nev., Ariz.* ; (m tiie first Wednesday in January : Me. C 4,3,1 ; Mass. ; Mich. ; Md. ; Mo. ; Col. ; on the Wednesday after the first Tuesday in January : Ct. ; on the second Wednesday in January : Wis.,* W. Va. ; on the first Tuesday after the first Monday in January: Minn.* 3,4 ; Miss.; Fla. ; on the first Thursday after the first Monday in January : Ind. ; on the second Tuesday in January: N.J. C. 4,1,3; Kan.; Te.x.* 3141 ; Dak.* Pol. C. 2,2; Wy.* ; on the first Wednesday of October: Vt. ; on the first Wednesday in June: N.H. C. 2,3 ; on the Wednes- day after the first Monday in January: Ct., 111., N.C ; on the first Tuesday in January: N.Y.* 1,7,2,1 ; Pa. C. 2,4 ; Neb. ; Del. ; on the second M(mday in January : lo., Ark., Mon ,* Uta.*; on the first Tuesday after the second Monday in November: Ala., 1879, Feb. 21 ; Ark. ; on the second Mcmday in September : Ore. ; on the fourth Tuesday in November: S.f-. ; on the second Monchiy in May: La. ; on the first Wednesday in November : Ga. ; on the second Monday in December: Ida.*; on the last Monday in December: N.M.* 1884,82; on the first Monday in December : Ky.* 68,10 ; Cal.* 235 ; Wash.* ; on the first Wednesday in December : Va.* 1877,248 ; on the first Tuesday in November : Wy.* In Rhode Island, on the first Tues- day in May, at Newport, with an adjourned session at Providence. Extra sessions on extraordinary occasions may be convened by the governor : " Mass. C. Amt. 10 ; Me. C. 5,1,13; Vt. C. 2,11 ; P.I. C. 7,7 ; Ct. C. 3,2; N.Y. C. 4,4; N.J. C. 5,6; Pa. C. 4,12; 0. C. 3,8; Ind.; Ill C. 5,8; Mich. C. 5,7; Wis. C. 5,4; lo. C. 4,11; Minn. C. 5,4; Kan. C. 1,5; Neb. C. 5,8; Md. C. 2,16 ; Del. C. 3,12 ; Va.* C. 4,5 ; W.Va.^ C. 6,19 ; 7,7 ; N.C.'' C. 3,9 ; Ky. C. 3,13 ; Tenn. C. 3,9 ; Mo. C. 5,9 ; Ark. C. 6,19 ; Tex. C. 4,8 ; Cal. C. 5,9 ; Ore. C. 5,12 ; Nev. C. 5,9 ; Col. C. 4,9 ; S.C. C. 3,16 ; Ga. C. 5,1,13 ; Ala. C. 5,10 ; Miss. C. 5,7 ; Fla. C. 4,2 ; 5,8 ; La. C. 72 ; Wash.* ; Ida.* ; Mon.* ; U.S « R. S. 1923 ; 1874, 388 ; Ariz.* 1090. THE EXECUTIVE. 71 So, in two, the governor may call the legislature together sooner than the time to which it was adjourned or prorogued, if necessity require : N.H. C. 2,50; Mass. C. 2,2,1,5. No session can extend beyond the term of (1) sixty-one days : Ind. C. 4,29 ; (2) forty days: Col. C. 5,6; Ga. C. 3,4,6; (3) sixty days: Minn. C. 4,1 ; Ky. C. 2,24; xirk. C. 5,17 ; Nev. C. 4,29 ; Fla. C. 4,25 ; La. C. 21 ; Territories, U.S. R. S. 1852 : U.S. 1881, C. 7 ; (4) ninety days : Md. C. 3,15 ; Va. C. 5,6 ; (5) fifty days : Ala. C. 4,5 ; (6) forty- five days : W.Va. C. 6,22. So, in one, no member will be paid, or paid full rates, for more than a session (1) of seventy-five days : Tenn. C. 2,23 ; (2) of seventy days : Mo. C. 4,16 ; (3) of sixty days : Tex. C. 3,24 ; Cal. C. 4,2 ; (4) forty days : Ore. C. 4,29. Unless continued by a two-thirds vote: W.Va., Ky., Ga. And in Virginia, the session may be continued for thirty days beyond the time so above limited, upon concurrence of three fifths of the members. Note. — " But no such extraordinary session can be called in the territories without the approval of the President of the United States. ^ On application of two thirds of the members. « Of three fifths of the elected members, except on extraordinary occasions. '^ With advice of the counciL § 278. Adjournment. By the Constitutions of all states, neither House can adjourn without the consent of the other .(1) for more than three days: Vt. C. Amt. 3 ; N.J. C. 4,4,5 ; Pa. C. 2,14 ; Ind. C. 4,10 ; Mich. C. 4,12 ; Wis. C. 4,10 ; Id. C. 3,14 ; Minn.« C. 4,6 ; Neb. C. 3,8 ; Md. C. 3,25 ; Del. C. 2,10 ; Va. C. 5,6 ; W.Va. C. 6,23 ; Ky. C. 2,23 ; Tenn. C. 2,16 ; Ark. C. 5,28; Tex. C. 3,17; Cal. C. 4,14; Ore. C. 4,11 ; Nev. C. 4,15; Col. C. 5,15 ; S.C. C. 2,25; Ga. C. 3,7,24; Ala. C. 4,16; Miss. C. 4,13; Fla. C. 4,11; La. C. 33; Ariz.* 1113. So, in others, (2) for not more than two days : N.H. C. 2,19 and 36 ; Mass. C. 2,1,2,6 ; 2,1,3,8 ; Me. C. 4,3,12; R.I. C. 4,9; N.Y. C. 3,11 ; 0." C. 2,14; III C. 4,10; Kan.« C. 2,10 ; Mo. C. 4,23. Nor, in many states, without such consent, to any other place than that in which it may be sitting : Me., Vt., R.I., N.J., Pa., 0., Ind., 111., Mich., lo., Minn., Md., Del., Va., W.Va., Ky., Tenn., Mo., Ark., Tex., Cal., Ore., Nev., Col., S.C, Ga., Ala., Miss., Fla., La., Ariz.* But in one it may adjourn to such other place by concurrent vote of two thirds present : Md. And in one other, every adjournment or recess taken by the legislature for more than three days has the effect of an adjournment sine die: Mo. C. 4,21. Adjournment by the Governor. In most states, if the two Houses disagree with respect to the time of adjournment, the governor may adjovu'u the legislature to such time as he think proper, (1) not beyond the first day of the next regular session : Me. C. 5,1,13; R.L C. 7,6; Ct. C. 4,7 • 0. C. 3,9; III C. 5,9; lo. C. 4,13; Kan. C. 1,6; Neb. C. 5,9; Ark. C. 6,20; Cal C. 5,11; Nev. C. 5,11; Col C. 4,10; S.C. C. 3,16; Miss. C. 5,7 ; Fla. C. 5,10 ; (2) not for more than ninety days : N.H. C. 2,43 ; Mass. C. 2,2,1,6 ; Del C. 3,12 ; (3) to such time as he think proper : Vt. C. Amt. 3; Ga. ; (4) not exceeding four mouths : Pa. C. 4,12 ; Ky, C. 3,13. Note. — » Sundays excepted. Art. 28. The Executive. (See § 240, note ".) § 280. Duties of the Governor. It is in most states declared to be the duty of the governor to take care that the laws are faithfully executed : Me. C. 5,1,12 ; Vt. C. 2^1 ; R.L C. 7,2 ; Ct. C. 4,9 ; N.Y. C. 4,4 ; N. J. C. 5,6 ; Pa. C. 4,2 ; 0. C. 3,6 ; Ind. C. 5,16 ; III C. 5,6 ; Mich. C. 5,6 ; Wis. C. 5,4 ; lo. C. 4,9; Minn. C. 5.4 ; Kan. C. 1,3 ; Neb. C. 5,6 ; Md. C. 2,9 ; Del. C. 3,13 ; Va. C. 4,5 ; W.Va. C. 7.5 ; N.C. C. 3,7 ; Ky. C. 3,14; Tenn. C. 3,10 ; Mo. C. 5,6; Ark. C. 6,7; Tex. C. 4,10; Cal C. 5,7; Ore. C. 5,10; Nev. C. 5,7; Col C. 4,2; S.C. C. 3,12; Ga. C. 72 POLITICAL CONSTITUTION. 5,1,12; Ala. C. 5,8; Miss. C. 5,9; Fla. C. 5,6; La. C. 72; Ariz.* 1089; Terri- tories, U.S. K. S. 1841. He is generally, at the commencement of each session, or from time to time, to o-ive the legislature information by message of the condition of the State, and recommend such measures as he deems expedient : Me. C. 5,1,9 ; Ct. C. 4,8 ; N.Y. ; N.J.; Pa. C. 4,11; 0. C. 3,7; lud. C. 5,13; 111. C. 5,7; Mich. C. 5,8; Wis.; lo. C. 4,12 ; Minn. C. 5,4 ; Kan. C. 1,5 ; Neb. C. 5,7 ; Md. C. 2,19 ; Del. C. 3,11 ; Va. ; W.Va. C. 7,6 ; N.C. C. 3,5 ; Ky. C. 3,12 ; Tenn. C. 3,11 ; Mo. C. 5,9 ; Ark. C. 6,8 ; Tex. C. 4,9 ; Cal. C. 5,10 ; Ore. C. 5,11 ; Nev. C. 5,10 ; Col. C. 4,8 ; S.C. C. 3,15 ; Ga. C. 5,1,13; Ala. C. 5,11 ; Miss. C. 5,8 ; Fla. C. 5,9 ; La. C. 71 ; Ariz.* 1091. He must, in some states, present estimates, at the commencement of the session, to the legislature of the amount of money required to be raised by taxation for all state purposes : 111. ; Neb. ; W.Va. C. 7,6 ; Mo. C. 5,10 ; Tex. ; Col.; Ala. § 281. Powers of the Governor. By the Constitutions of most states, the governor may require information in writing from officers of the executive department upon any subject relating to the duties of their respective offices Me. C. 5,1,10 ; Ct. C. 4,6 ; Pa. C. 4,10 ; 0. C. 3,6 ; Ind. C. 5,15 ; 111. C. 5,21 Mich. C. 5,5 ; lo. C. 4,8 ; ]Minn. C. 5,4 ; Kan. C. 1,4 ; Neb. C. 5,22 ; Del. C. 3,10 Va. C. 4,6; W.Va. C. 6,18; N.C. C. 3,7; Ky. C. 3,11; Tenn. C. 3,8; Mo. C. 5,22 ; Ark. C. 6,7 ; Tex. C. 4,24 ; Cal. C. 5,6 ; Ore. C. 5,13 ; Nev. C. 5,6 ; CoL C. 4,8 ; S.C. C. 3,14 ; Ga. C. 5,1,18 ; Ala. C. 5,9 ; Miss. C. 5,6 ; Fla. C. 5,5 ; La. C. 70 ; Ariz.* 1088. So, in a few, from all officers or managers of state institutions : N.H. C. 2,57 ; Mass. C. 2,2,1,12 ; Neb.; Mo. ; Col. ; Ala. He may, in four, require such iuforniation to be given under oath : 111., Tex., Col., Ala. So, in two, any officer making a false report is guilty of perjury : Mo., Ala. § 282. The Lieutenant Governor, by the Constitutions of most States, succeeds to the office of governor upon the death, impeachment, or other disability of the latter : Mass. C. 2,2,2,3 ; Vt. C. Amt. 8 ; E.I. C. 7,9 ; Ct. C. 4,14; N.Y. C. 4,6; Pa. C. 4,13 ; 0. C. 3,15 ; Ind. C. 5,10 ; 111. C. 5,17; Mich. C. 5,12 ; Wis. C. 5,7; lo. C. 4,17 ; Minn. C. 5,6 ; Kan. C. 1,11 ; Neb. C. 5,16 ; Va. Q 4,10 ; N.C. C. 3,12 ; Ky. C. 3,17 ; Mo. C. 5,10 ; Tex. C. 4,16 ; Cal. C. 5,16 ; Nev. C. 5,18 ; Col. C. 4,13 ; S.C. C. 3,9 ; Miss. C. 5,17 ; Fla. C. 5,14 ; La. C. 62. P.ut in many (where there is no lieutenant-governor), the president of the senate succeeds the governor: N.H. C. 2,49 ; Me. C. 5,1,14; N.J. C. 5,12 ; Md." C. 2,7 ; Del. C. 3,14 ; W.Va. C. 7,16 ; Tenn. C. 3,12 ; Ark. C. 5,18 ; 6,12 ; Ga. C. 5,1,8; Ala. C. 5,15. And after him, the speaker of the house: Me.; N. J. ; W.Va. ; Tenn. ; Ark. C. 6,13 ; Ga. ; Ala. In Oregon, the secretary of state succeeds (so in the temtories, U.S. R. S. li^43), and after him the president of the senate : Ore. C. 5,8. And in two, the legislature, in case of vacancy, elects a governor: Md. C. 2,6; W.Va.'' But if the vacancy occurs in the first three years of the term, there is au election by the people : W.Va. So, if in the first two years of the term : Ky. C. 2, Id. So, if a year of the term remains unexpired : Ark. C. G,14. The lieutenant-governor is in most states president of the senate, with a cast- ing vote: Vt. C. Amt. 6 ; Ct. C. 4,13 ; N.Y. C. 4,7 ; Pa. C. 4,4; 0. C. 3,16 ; Ind. C. 5,21; 111. C. 5,18; Mich. C. 5,14; Wis. C. 5,8; lo. C. 4,18; Minn. C. 5,6; Kan. C. 1,12 ; Neb. C. 5,17 ; Va. C. 4,11 ; N.C. C. 3,11 ; Ky. C. 3,16 ; *Mo. C. 5,15 ; Tex. C. 4,16; Cal. C. 5,15 ; Nev. C. 5,17; Col. C. 4,14; S.C. C. 3,5 and 6; Miss. C. 5,15; Fla.; La, C. 04. THE MILITIA, 73 And in one, he is a member of the council, and president thereof when the governor's chair is vacant : Mass. C. 2,2,2,2. But he cannot, in one, grant pardons or reprieves : Vt. Nor, in one, can he command the militia except as lieutenant-general, but by advice of the senate : Vt. Upon the death, impeachment, or inability of the lieutenant-governor also, the temporary president of the senate is, in most states, governor pro teirqwre: R.I. C. 7,10 ; Ct. C. 4,15 ; KY. ; Pa. C. 4,14 ; O. C. 3,17 ; 111. C. 5,19 ; Mich. C. 5,13 ; lo. C. 4,19 ; Minn. ; Kan. C. 1,13 ; Neb. C. 5,18 ; N.C. ; Ky. C. 3,18 ; Mo. C. 5,17 ; Tex. C. 4,17 ; Cal. ; Nev. ; Col. C. 4,15 ; S.C* 469 ; Miss. ; Fla. ; La. But in one, the council, or a majority of it, has the power of the governor : Mass. C. 2,2,2,6. And in one, the secretary of state succeeds : Wis. And so, by succession, in several, the speaker of the house succeeds the president of the senate : 0.; 111.; lo. ; Kan.; Neb.; Mo.; Col. ; S.C* 470; Miss. ; and the secretary of state the speaker : Del. Notes. — « Until election of a governor as below. * When there is no president of the senate, etc., as above. Art. 29. The Militia. § 290. General Provisions. (A) In four state Constitutions it is declared that every member of society is bound to yield his personal service, or an equivalent thereto, to the state for the defence of life, liberty, and property : Mass. C. 1,10; Vt. C. 1,9; Ore. C. 1,27; S.C. C. 1,36. (b) But in many states, it is declared that a person conscientiously op^posed to bearing arms will not be compelled thereto (1) if he will pay an equivalent : N.H. C. 1,13; Me. C. 7,5 ; Vt. ; Ind. C. 12,6 ; III C. 12,6 ; lo. C. 6,2; Va. C. 9,1 ; Ky. C. 7,1 ; Tenn. C. 1,28 ; 8,3 ; Mo. C. 13,1 ; Tex. C. 16,47 ; Ore. C. 10,2 ; Col. C. 17,5 ; S.C. C. 1,30 ; La. C. 183. But in a few it seems that he may be compelled to bear arms in time of war, as the exemption applies only to militia duty in time of peace : 111., lo.. Ore., Col. (2) " Upon such terms as may be prescribed by law," he will be relieved from such service: N.Y. C. 11,1; Mich. C. 17,1; Kan. C. 8,1; KC. C. 12,1; Mo.; Fla. C. 11,1. (3) And in Maine, Quakers and Shakers and clergymen are excused. (C) So, in several, the militia is declared the proper and natural defence of a free state : N.H. C. 1,24 ; Md. C. Decln. of Rts. 28; Va. C. 1,15 ; N.C. C. 1,24; Tenn. C. 1,24; Ga. C. 10,1,1; La. C. 3. § 291. The Militia consists, in most states, (a) of all able-bodied male persons (citizens, in states so * noted ; inhahitants, in Oregon) between the ages of (1) eighteen and forty-five : 0. C. 9,1 ; Ind. C. 12,1 ; 111. C. 12,1 ; Mich.* C. 17,1 ; Jo.'' C. 6,1 ; Va. C 9,1 ; Ky. C. 7,1 ; Mo. C. 13,1 ; Ark. C. 11,1 ; Ore. C. 10,1 ; Col. C. 17,1 ; S.C. C. 13,1 ; Ala. C. 12,1 ; Miss. C. 9,1 ; Fla. C. 11,1. (2) Twenty- one and forty-five: Kan.* C. 8,1. (3) Twenty-one and forty : N.C. C. 12,1. In a few, they must in addition be ivhite : 0., Ind., Kan., Ky. (b) In others, the whole matter is left to the legislature to be determined by law : N.J. C. 7,1,1 ; Pa. C. 11,1 ; Wis. C. 4,29 ; Minn. C. 12,1 ; Neb. C. 13,1 ; Md. C. 9,1 ; Tex. C. 16,46 ; Cal. C. 8,1 ; Nev. C. 12,1 ; Ga. C. 10,1,1 ; La. C. 18.1. KoTES. — " This applies only to volunteer companies. ^ See above. § 292. Civil Power." The military is, in all states except New York, declared forever subordinate to the civil power : N.H. C. 1,26 ; Mass. C. 1,17; Me. C. 1,17 ; Vt. C. 1,16 ; E.I. C. 1,18; Ct. C. 1,18 ; N.J. C. 1,12 ; Pa. C. 1,22; 0. C. 1,4 ; Ind. C. 1,33 ; III C. 2,15 ; Mich. C. 18,8 ; Wis. C. 1,20 ; lo. C. 1.14; 74 rOLTTICAL CONSTITUTION. Minn. C, 1,14; Kan. C. Bill of Ets. 4 ; Neb. C. 1,17; Md. Dccln. of Rts. 30; Del. C. 1,17 ; Va. C. 1,15 ; W.Va. C. 3,12 ; N.C. C. 1,24; Ky. C. 13,2G ; Tenu. C. 1,24; Mo. C. 2,27; Ark. 0. 2,27; Tex. C. 1,24; Cal. C^. 1,12; Ore. C. 1,27; Nev. C. 1,11 ; Col. C. 2,22 ; S.C. C. 1,2S ; ({a. C. 1.1,1!) ; Ala. C. 1,28 ; Miss. C. 1,25; Fla. C. Deiln. of lUs. 12; La. C. 12; 102; N.M.* 1851, July 12, § 16; Ariz.* Dill of lils. ;5. NoTK. — " Coiuiiiuo Kng. Slat. 1 W. &M. Scss. 2 ; also Dcclanilion of IiulcponiU'iico. Sec § 210, note ». § 293. Martial Law is in one state declared inconsistent with a free govern- ment, and is not " confided " to any department of the state government : Tenn. C. 1,25. And ii\ s(>veral, no person can be subjected to martial law except the army, navy, or militia in actual service: N.Il. C. 1,34; Mass. C. 1,28; Me. C 1,14; Vt. C. 1,17 ; Md. Decln. of Ets. 32; W.Va. C. 3,12 ; Teun. C. 1,25 ; S.C. C. 1,25. In one, in;irti;il law is \o bo oin])l()y('(l only wlion occasion necessarily requires it: R.I. C. 1,18. But in tliree, it seenis any person may be subjected to martial law by autliority of the legislature : N.II., Mass., S.C. § 294. Standing Armies." The Constitutions of most of the states provide that (a) slaniliiig aianies are dangerous to liberty and ought not to be kept up in time of peace : N.II. C. l,25;'Mass. C. 1,17; Me. C. U7; Vt. C. 1,10; Pa. C. 1,22; 0. C. 1,4; lo. C. 1,14; Minn. C. 1,14; Kan. C. Dill of lits. 4; Va. C. 1,15; W.Va. C. 3,12; N.C. C. 1,24; Ky. C. 13,26; Tenn. C. 1,24; Ark. C. 2,27; Cal. C. 1,12; Nev. C. 1,11; S.C. C. 1,28. And in time of war the appropriation for sucli army cannot be for a longer term tlian two years : lo. ; Ky. C. 8,5 ; Nev. Not for a longer term than one year : Ala. C. 1,28. (B) But in several, it seenis standhig armies may bo kept up at any time with the authority of tlie legislature : N.II. ; Mass. ; Me. ; I'a. ; Md. C. Declu. of iUs. 29 ; Del. C. 1,17; Ky. ; S.C; Ala. None. — " § 202, note ». § 295. Billeting Soldiers." P>y the Constitutions of all but Vermont, New York, Wisconsin, Virginia., and Mississippi, no soldier can be quartered in any bouse without the consent of the owner, except in time of war; and then only (in all these states except Louisiana) in the manner bv law prescriVjcd : N.II. C. 1,27 ; Mass. C. 1,27 ; Me. C. 1,18 ; IM. C. 1,19 ; Ct. C. 1,10 ; N.J. C. 1,13 ; Pa. C. 1,23 ; O. C. 1,13 ; Ind. C. 1,34 ; III C. 2,10 ; I\Iich. C. 18,9 ; lo. C. 1,15 ; Kan. C. BiUof Pts. 14; Neb. C. 1,18; Md. Decln. of Pts. 31; Del. C. 1,18; W.Va. C. 3,12; N.C. C. 1,36; Ky. C. 13,27; Tenn. C. 1,27; Mo. C. 2,27; Ark. C. 2,27; Tex. C. 1,25; Cal. C. 1,12; Ore. C. 1,28; Nev. C. 1,12; Cob C. 2,22; S.C. C. 1,29 ; Ga. C. 1,1,19 ; Ala. C. 1,29 ; Fla. C. Decln. of Ets. 13 ; La. C. 102 ; Ariz.* Bill of llts. 4. Note. — <• U.S. C. Amt. 3. Soo § 210, note". § 296. Privileges of Militia. Members of the militia are, by the Constitutions of several states, (A) privileged from arrest during their attendance at musters and elec- tions and in going to and returning from them. Except in cases of treason, felony, and breach of the peace: 111. C. 12,4 ; Mo. C. 13,5 ; Ark. C. 11,3; Ala. C. 12,5 ; Miss. C. 9,8. And in several, no person can bo imprisoned for a militia fine in time of peace : N.J. C. 1,17; Mich. C. G,33 ; lo. C. 1,19; Cal. C. 1,15; Nev. C. 1,14. N.J. C. 5,6; Wis, C. 5,4; 2,8; Del. C. C. 3 =5; Mo. C. 5 ,5; Col. C. 5, ,5; Fla. PROCESS OF LEGISLATION. 75 § 297. The Governor is Commander-in-Chief of the militia (aud army aud navy of the state), by the Constitutious of all states : N.H. C. 2,51 ; Ma.ss. C. 2,2,1,7 ; Me. C. 5,1,7 ; Vt. C. 2,11 ; li.I. C. 7,3 ; Ct. C. 4,5 ; N.Y. C. 4,4 ; Pa. C. 4,7 ; 0. C. 3,10 ; Ind. C. 5,12 ; 111. C. 5,14 ; Mich. C. 5,4 ; lo. C. 4,7 ; Minn. C. 5,4 ; Kan. C. 8,4 ; Neb. C. 5,14 ; Md. C. 3,7 ; Va. C. 4,5 ; W.Va. C. 7,12 ; N.C. C. 3,8 ; Ky. C. 3,8 ; Tenn. C. 5,7 ; Ark. C. 6,6 ; Tex. C. 4,7 ; Cal. C. 5,5 ; Ore. C. 5,9 ; Nev. C. 4,5 ; S.C. C. 3,10 ; Ga. 0. 5,1,11; Ala. C. 5,18; 12,6 ; Miss. C. 5,4 ; La. C. 183. And so, in all the territories, by U.S. II. vS. 1841. Except, in many, when they are called into the United States service : Me., E.I., Ct., Pa., 0., 111., Neb., Del., W.Va., N.C, Ky., Tenn., Mo., Ark., Tex., Nev., Col, S.C, Ala., Miss., Fla. But he is not, in a few, to corninainJ in porson in the fit-Id unless he is advised to do so by resolution of the legi-slature : Md., Ky., Mo., Ala. And he is not, without legi.slative authority or their consent, to lead or order the militia out of the state : N.H., Mass., Me. § 298. Purposes of the Militia. The governor may, by the Constitutions of most states, call out the militia (1) to execute the laws : Ind. C 5,12 ; 111. C 5,14 ; Mich. C 5,4 ; Minn. C 5,4 ; Kan. C 8,4 ; Neb. C 5,14 ; Md. C 2,8 ; Va. C 4,5 ; W.Va. C 7,12 ; N C. C 12,3 ; Mo. C 5,7 ; Ark. C 11,4 ; Tex. C. 4,7 ; Cal. C. 8,1 ; Ore. C 5,9 ; Nev. C 12,2 ; Col. C 4,5 ; S.C C 13,2 ; Ala. C 5,18 ; Miss. C. 9,5 ; Fla. C 11,4 ; La. C. 183. So, in Louisiana, " when the public ser- vice requires it." (2) To suppress insurrection : Ind., 111., Mich., Minn., Kan., Neb., Md., Va., W.Va., N.C, Mo., Ark., Tex., Cal, Ore., Nev., CoL, S.C, Ala., Miss., Fla. But so, in three, only vi^hen the legislature declare by law that the public safety requires it : N.H. C. 2/A; Mass. C. 2,2,1,7; Tenn. C. 3,.5. (3) And to repel invasion : N.H., Mass., Ind., III., Mich., Minn., Kan., Neb., Md., Va., W.Va., N.C, Mo., Ark., Tex., Cal., Ore., Nev., Col., S.C, Ala., Mis.s., Fla. So, in Tennessee, only with special enactment of the legislature, as in (2). So, to protect the frontier : Tex. (4) And in four, to preserve the public peace: Ark., S.C, Fla., La. § 299. Miscellaneous Provisions. The California Constitution provides that all military organizations receiving state supjiort should carry under arms no device or flag of any nation other than the United States or state flag : Cal. C. 8,2. CHAPTER II. LEGISLATION : FORM. Art. 30. Process of Legislation. § 300. Bills. I'y tlie Constitutions of many states, no law can be passed ex- cept by bill : N.Y. C 3,14 ; Pa. C 3,1 ; Ind. C 4.1 ; Wis. C 4,17 ; Kan. C 2,20 ; Neb. C 3,10 ; Md. C 3,29 ; Mo. C 4,25 ; Ark. C 5,21 ; Tex. C 3,30 ; Cal. C 4,15 ; Nev. C. 4,23 ; Col. C 5,17 ; Ala. C 4,19. Bills may generally originate in either house of the legislature : Me. C 4,3,9 ; Vt. C Amt. 3 ; N.Y. C 3,13 ; 0. C 2,15 ; Ind. C 4,17 ; 111. C 4,12 ; Mich. C. 4,13 ; Wis. C 4,19 ; lo. C 3,15 ; Kan. C 2,12 ; Neb. C 3,9 ; Md. C 3,27 ; Va. 76 LEGISLATION: FORM. C. 5,9 ; W.Va. C. 6,28 ; Tenn. C. 2,17 ; Mo. C. 4,2G ; Tex. C. 3,31 ; Cal. ; Ore. C. 4,18 ; Nev. C. 4,16 ; S.C. C. 2,18 ; Miss. C. 4,23 ; Ma. C. 4,12 ; Ariz.* 1114. And the same is probably implied in all other states. See § 303. But they may be amended, altered, or rejected in the other house : " Me., N.Y., Pa., 0., Ind., 111., Wis., Ic, Kan., Neb., Md., Va., W.Va., Teun., Mo., Ark., Tex., Cal., Ore., Nev., Col., S.C, Ala., Miss., Fla. This is also implied in other states. But not, in some states, so as to change the original purpose of the bill : Pa., Mo., Ark., Tex., Col., Ala. Note. — « Compare also §§ 201,310. § 301. Form of Bills, The Constitutions of most states prescribe that no law shall relate to more than one subject, and that this shall be expressed in the title : N.J. C. 4,7,4 ; Pa. C. 3,3 ; 0. C. 3,16 ; Ind. C. 4,19 ; 111. C. 4,13 ; Mich. C. 4,20 ; lo. C. 3,29 ; Minn. C. 4,27 ; Kan. C. 2,16 ; Neb. C. 3,11 ; Md. C. 3,29 ; Va. C. 5,15 ; W.Va. C. 6,30 ; Ky. C. 2,37 ; Tenn. C. 2,17 ; Mo. C. 4,28 ; Tex. C. 3,35 ; CaL C. 4,24 ; Ore. C. 4,20 ; Nev. C. 4,17 ; Col. C. 5,21 ; S.C. C. 2,20 ; Ga. C. 3,7,8 ; Ala. C. 4,2 ; Fla. C. 4,14 ; La. C. 29 ; Wash. U.S. E. S. 1924. Except, in a few, general apiiropriatiou bills : Pa., Mo., Tex., Col., Ala. See § 311. And in two, the principal provision only appUes to private or local bills: N.Y. C. 3,16; W^is. C. 4,18. But, in several states, if there are other subjects in the bill, not embraced in the title, the bill is nevertheless good _^jro tanto as to those that are : Ind., 111., lo., W.Va., Tex., Cal., Ore., CoL By the Constitutions of two states every act is to be plainly worded, avoiding, so far as pos- sible, the use of technical terms : Ind. C. 4,20 ; Ore. C. 4,21. And by that of Louisiana, the legislature shall never adopt any system or code of laws by general reference to such code, but sliall in all cases recite at lengtli the provisions enacted (compare § 309) : La. C. 31. § 302. Committees. By the Constitutions of six states, no bill shall be considered for passage unless it has first been referred to a committee and reported therefrom : Pa. C. 3,2 ; Mo. C. 4,27 ; Tex. C. 3,37 ; Cob C. 5,20; Ala. C. 4,20 ; La. C. 37. And in Texas, no bill shall be passed unless so referred and reported at least three days before tlie final adjournment of the legislature. § 303. Reading of Bills. Every bill must ordinarily, by the Constitutions of most states, be read by sections on three different days in each house of the le<,dslature : N.J. C. 4,4,6 ; Pa. C. 3,4 ; 0. C. .3,16 ; Ind. C. 4,18 ; III C. 4,13 Mich." C. 4,19 ; Minn. C. 4,20 ; Kan. C. 2,15 ; Neb. C. 3,11 ; Md. C. 3,27 W.Va. C. 6,29 ; N.C." C. 2,23 ; Ky. C. 2,29 ; Tenn. C. 2,18 ; Mo. C. 4,26 ; Ark C. 5,22 ; Tex. C. 3,32 ; Cal. C. 4,15 ; Ore. C. 4,19 ; Nev. C. 4,18 ; Col. C. 5,22 S.C. C. 2,21 ; Ga. C. 3,7,7 ; Ala. C. 4,21 ; Miss. C. 4,23 ; Fla. C. 4,15 ; La. C 37 ; Ariz.* 1117. But in case of urgency, either house may dispense with such rule, on a vote (1) of four fifths of the members present: W.Va., Ky., Tex. ; (2) of three fourths: 0.; (3) of two thirds : Ind., Minn., Kan., Md. {of the members elected), Ark.,'' Cab, Ore., Nev., Miss., Fla. But in Minnesota, every bill must have been read at least twice at length, in order to pass either house. And every bill, in order to become a law, nmst, in many states, have been read at length on its final passage : Ind. ; Mich. ; lo. C. 3,17 ; Kan. ; W.Va. ; Cal. ; Ore. ; Nev. ; Ala. ; Fla. ; La. (B) Of Private or Local Bills,"^ there must, by the Constitutions of several states, be notice iflvcn ; as (1) by thirty day.s' publication of the bill in the locality aff"ected before its in- troduction into the legislature: Pa. C. 3,8; N.C. C. 2,12; Mo. C. 4,.'i4 ; Ark. C. 5,2G ; Te.^. C. 3,57; Ga. C. 3,7,16; La. C. 48. (2) So, in Alabama, twenty days' notice by such publi- PROCESS OF LEGISLATION". 77 cation : Al (3) If kept six days: Md.," Wash.,'' Wy." (4) If kept ten days: N.Y. ; « Pa-flll.;" Mich.;" Ky. ;" Mo. C. 4,40; Tex.;" Cal. ;" Col. ; Ariz." (B) But, in most states, if the legislature adjourn before the time respectively limited above, the bill does not (except as below) become a law : N.H. ; Mass. C. Amt. I; Me.; Vt.;<= Ct. ; N.Y. ; N.J. ; Pa.; Ind. ; lib; Mich.; Wis.; lo. ; Minn.; Kan.; Neb. ; Md. ; Va. ; W.Va. ; Ky. ; Tenn. ; Uo. C. 5,12 ; Ark. ; Tex. ; Cal. ; Ore. ; Col. ; S.C. ; Ga. ; Ala. ; Miss. ; Fla. ; La. ; and all the Territories.* In several states, however, the bill does become a law if not returned by the governor (!) within five days after the adjournment: Ind., Neb., W.Va., Ore." (2) Whhin ten days after: 111., Nev., ° Fla. (3) Within twenty days after : Ark., Tex. (4) Within thirty days after: N.J.* 1880,173; Pa. ; Mo. ; Col. (5) Within three days after the next meeting of the legislature: Me., Ky., ^liss. (G) Within ten days after such next meeting: 111. (7) Audio California," the bill becomes a law if returned and signed within (o) ten days after the adjouiii- ment. (,3) So, within thirty days after final adjournment: N.Y. (y) Witliiu two days after the next meeting : S.C. (8) So, in Michigan, if returned signed within five days of the adjournment, the bill having been passed in the last five days of the session. (9) So, in Min- nesota, a bill passed in the last three days of the session Avill become a law if signed within three days of the adjournment. So, in Iowa, if returned within thirty days after. Notes. — ° Sundays excepted. * U.S. R. S. 1842. <= In these states, it does not become a law if the legislature adjourn within three days after its presentment to the governor. For citations, see § 305. See also § 240, note «. § 307. General Restrictions. (A) By the Constitutions of several states, no new bill can he introduced into eitlier house (1) after the first twenty-five days of the session: C(d. C. 5, 19. (2) In two, not after the first fifty days of the session have expired : Mich. C. 4,28 ; Cal. C 4,2 (unless by the consent of two thirds of the members: Cab). (3) In one, not during the last three days of the session : Ark. C. 5,34. (4) In one, uot witliin the last ten days, except by a two-thirds vote of a full bouse : Md. C 3,27. (5) And in one, no bill can be passed by either house on the day prescribed for adjournment: Minn. C. 4.22. (G) And in one, none can be presented to the governor within two days of the final adjournment: lud. C. 5,14. (B) By the Constitutions of four states, after a bill or resolution has been coTisidered and defeated in either house, no bill the same in substance (1) shall be passed during that session : Tenn. C. 2,19; Tex. C. 3,34 ; Ga. C. 3,7,13 (without the consent of two thirds of the house which rejected it). (2) Shall be again proposed without the consent of a majority of the house which njected it: La. C. 3G. In Utah, Washington, New Mexico, and Arizona, all laws passed by the territorial legis- lature and governor must be submitted to Congress, and, if disapproved, shall be void : U.S. R. S. 1850. § 308. Amendments, Repeals, and Revisions, (a) The Constitutions of many States provide that no law shall be revived, altered, or amended by reference to its FORM OF REVENUE BILLS. 79 title only ; Ijiit the act revived, and sections altered or amended, shall be enacted and published at length :« N.J. C. 4,7,4; Pa. C. 3,6; 0. C. 2,10 ; Ind. C. 4,21 ; 111. C. 4,13; Mich. C. 4,25; Kan. C. 2,16; Neb. C. 3,11; Md. C. 3,29; Va. C. 5,15; W.Va. C. 6,30; Mo. C. 4,33 and 34; Ark. C. 5,23; Tex. C. 3,36; Cal. C. 4,24; Ore. C. 4,22 ; Nev. C. 4,17 ; Col. C. 5,24; Ala. C. 4,2 ; Fla. C. 4,14; La. C. 30. And the sections so amended shall, in three, be repealed : O., Kan., Neb. (B) So, in two states, no act shall be passed which shall provide that any existing law or any part thereof shall be made or deemed a part of said act, or shall be applicable, except by inserting it in such act: N.Y. C. 3,17; N.J. But in two others, all acts which repeal, revive, or amend fonrier laws, shall recite in their caption or otherwise the substance of the act repealed or revived: Tenn. C. 2,17; Ga. C. 3,7,17. Note, — « Compare §§ 1042-1044. § 309. When Acts take Effect." In some states the Constitution provides that laws go into effect (1) immediately upon publication: Ind. C. 4,28; Wis. C. 7,21 ; (2) on the fortieth day after final passage : Tenn.* C. 2,20 ; (3) on the sixtieth day after : ]\Iiss.* C. 12,9 ; (4) on the ninetieth day after: Col. C. 5,19; (5) ninety davs after the end of the session : Mich. C. 4,20 ; Neb. C. 3,24 ; W.Va. C. 6,30 ; Mo. C. 4,3G ; Tex. C. 3,39 ; Ore.'' C. 4,28 ; (6) on the July 1st after the passage of the law: 111. C. 4,13; (7) on the July 4th following: lo. C. 3,2G ; (S) on the June 1st following that session : JNId.*" C. 3,31 ; (9) in Louisiana, on the day of i^ublieation in the place wliere the State journal is published ; elsewhei'e, twenty days there- after : La. C. 40. (10) In one other state tlie legislature is to prescribe the time when its acts take efiect: Kan. C. 1,19. And ill several, the legislature are to provide for the speedy publication of laws : N.Y. C. 6,23; Mich. C. 4,3G;"lo. ; Wis. ; Kan.; Neb. ; Nev. C. 15,8; Col. C. 18,8; Fla. C. 16,13 ; La. No law can be in force until published : Wis., Kan. In three states, no law shall be passed the taking effect of whidi shall be made to depend upon any authority, except as provided in tlie Constitution : O. C. 2,26; Ind. C. 1,25; Ore. C. 1,21. But in some states the legislature may provide that any law shall go into effect sooner than the time respectively aV>oveiimited: Ind., Mich., lo.. Neb., W.Va., Mo., Tex., Ore., Col. By a two-tliirds vote of aU members ekcted to each house : 111., Midi., Neb., W.Va., Mo., Tex., Col. Notes. — " See § 1040. ^ Unless otherwise provided in the act itself. Art. 31. Form of Revenue Bills. § 310. Origin." All bills for raising revenue must, by the Constitutions of most of the states, originate in the lower house : N.H. C. 2,18 ; Mass. C. 2,1,3,7 ; Me. C. 4,3,9; Vt. C. Amt. 3; N.J. C. 4,6,1; Pa. C. 3,14; Ind. C. 4,17; Minn. C. 4,10 ; Neb. C. 3,9 ; Del. C. 2,14 ; Ky. C. 2,30 ; Tex. C. 3,33 ; Ore. C. 4,18 ; Col. C. 5,31 ; S.C. C. 2,18 ; Ga. C. 3,7,10 ;" Ala. C. 4,31 ; La. C. 35. The senate may generally propose amendments as in other bills : X.H., Mass., Me., Vt., N.J., Pa., Minn., Neb.,^Del., Ky., Ark., Tex., Col., S.C, Ga., Ala., La. But no new matter not relating to the revenue can, in four, be so introduced : Me., Vt., Del., Ky. The governor may, in many states, veto certain items in an appropriation bill, and allow the others to become a law : N.Y. C. 4,9 ; N.J. C. 5,7 ; Pa. C. 4,16 ; Minn. C. 4,11 ; Neb. C. 5,15 ; W.Va. C. 7,15 ; Mo. C. 5,13 ; Ark. C. 6,17 ; Tex. C. 4,14; Cal. C. 4,16; Col. C. 4,12; Ga. C. 5,1,16; Ala. C. 5,14; Fla. C. 5,22 La. C. 74. In one state, no appropriation can be passed in the last five days of the legislative session : La. C. 55. Note. — « So in U.S. C. 1,7. 80 LEGISLATION: FORM. § 311. The General Appropriation Bill may contain only, in some states, appro- priations for tiie ordinary expenses of the state in its legislative, executive, and judicial departments : Pa. C. 3,15; Ark. C. 5,30; Col. C. 5,32 ; Ga. C. 3,7,9; Ala. C. 4,32. So, in several, for the general expenses of government : Neb. C. 3,19; Cal. C. 4,29 ; Ore. C. 9,7; Fla. C. 4,30; La. C. 53; and in a few, for the interest on the public debt : Pa. ; Mo. C. 4,43 ; Col. ; Ga. ; Ala. ; La. So, in one, for the sinking fund : Mo, And for public schools : Pa., Mo., Col., Ga., Ala., La. In more detail, it may contain appropriations for salaries (1) of state officers generally : 111. C. 4,lt); Neb. ; W.Va. C. 6,42; Cal. ; Ore. ; Fla. ; (2) of the legislature: Mo. ; (3) for the "civil list : " Mo. ; (4) for the cost of collecting the revenue : Mo. : (5) for institutions under the exclusive control and management of the state: Cal., Ga. ; (6) for the support of the eleemos3mary institutions of the state: Mo., La. § 312. Other Appropriation Bills must, by the Constitutions of a few states, (A) contain no provi.-ions on any otiier subject : Pa. C. 3,15; Ga. C. 3,7,9; Ala. C. 4,32; La. C. 53. So, in one, of all hills for raising revenue : Del. C. 2,14. (B) They can, in a few, contain only one item or subject : Pa. ; Ark. C. 5,30 ; Cal. C. 4,34 ; Col. C. 5,32 ; Ga. ; Ala. ; La. (C) They must, in several, be for a certain, specified purpose: N.Y. C. 7,8 ; Mo. C. 10,19; Ark. C. 5,29 ; Cal. ; La. C. 54 ; and it is not sufficient to refer to any other law to fix such pur- pose : Mo. So, no appropriation can be made under the title of "contingent:" La. They must state a distinct amount : N.Y. In two, no moneys shall be issued out of the treasury but for the necessary defence and support of the state government and the protection of tlie inhabi- tants: N.H. C. 2,56; Mas.s. C. 2,2,1,11. (D) In one the general appropriations (§ 311) must be made first, and take precedence of any others: Mo. C. 4,43. § 313. Voting. The Constitutions of several provide that a bill appropriating money or property for private or local purposes must (1) receive a vote of two thirds of the elected members of each house : K.l.C.4,14; N.Y. C. 1,9; Mich. C. 4,45; Io.C.3,31. So, in two, an appropriation for charitable or educational institutions not under the absolute control of the state: Pa. C. 3,17 ; Ala. C. 4,34. In one, a bill appropriating money for ex- traordinary purposes (not included in $ 335) requires a two-thirds vote in each house (compare $ 314) : Ark. C. 5,31. In two, the yeas and nays must always be entered on the journal, on the passage of a bill appropriating money: Ga. C. 3,7,12; Miss. C. 4,14. In two, ou every act appropriating public money, tlie vote must be talcen by yeas and nays, entered on the jour- nal, and (1) tliree fiftiis of each house are necessary to a quorum : N.Y. C. 3,21 ; Wis. C. 8,8. So, in two, (2) such act must be voted for by a majority of the members elected to each house : Va. C. 10,11 ; Ky. C. 2,40. So, in one, of any act releasing, discliargiug, or commuting any claim or demand of the state : Va. Sec $ 304. § 314. Tax Bills. The Constitutions of several require that every law impos- ing a tax shall state distinctly the object of the. same, to which only it shall be applied: N.Y. C. .3,20; 0. C. 12,5; Mich. C. 14,14; lo. C. 7,7; Kan. C. 11,4; Va. C. 10,16; KG. C. 5,7; Ark. C. 16,11 ; Ore. C. 9,3 ; S.C. C. 9,4. So, in a few, of a bill creating a debt : N.Y. C. 7,12 ; Pa. C. 9,5 ; Nev. C. 9,3 ; Col. C. 11,4; S.C. C. 9,7; Ga. C. 7,4,1. And in three, it is not sufficient to refer to any other law, to fix such ol)ject: N.Y., Mich., lo., Va. In several, all taxes must be levied and collected by general laws : Pa. C. 9, 1 ; Mo. C. 10,3; Tex. C. 8,3 ; Col. C. 10,3 ; Ga. C. 7,2,1. In two, a bill imposing a tax must receive the necessary vote in a quorum of three fiftiis of each house, to be entered in the journal (as in $ 313) : N.Y. C. 3,21 ; Wis. C. 8,8; inid in one, of a majority of a quorum of two thirds of the elected members, in the house: Vt. C. 2,9. In one other, it nuist be r(;ad three several times in each iiouse, and passed the three readings, on (lifTerent days, the yeas and nays of the second and third readings entered in the journal : »s.( . C. x.,14. In one other, a bill imposing a tax for extraordinary objects (not included in $ 335) requires a two-tliirda vote in each house: Ark. C 5,31. APPROPRIATIONS. 81 § 315. State Debt Bills." Bills providing for a loan to the state or creating a state debt require, in some states (1) the assent of two thirds of the elected members of each house : Minn. C. 9,5; S.C. C. 0,7; Ala. C. 11,3. (2) The vote of a majority of members jiresent; but three fifths are, in such case, necessary to a quorum (as in $ 313) : N.Y. C. 3,21 ; Wis.'' C. 8,8. (3) Tlie vote of a majority of members elected (as in § 313) : Wis. C. 8,6 ; Kau. C. 11,5 ; Ky. C. 2,40. (4) They must be read three times, like tax bills; see $ 314 : N.C. C 2,14. Notes. — « See also § 314. ^ For temporary loans ; see § 160. § 316. State Aid Bills." In two states the legislature has no power to give or lend the credit of the state in aid of any person or corporation, unless the law be approved by direct vote of the people : N.C. C. 5,4 ; Ark. C. 10,6. Note. — " Compare § 326. CHAPTER III. FINANCE. Note to Chapter III. None but constitutional provisions are generally incorpo- rated in this chapter; for all similar provisions, by the laws of the territories as well as of the states, see in Parts III. and IV. Art. 32. Appropriations." § 320. "Warrants, etc. By the Constitutions of most states, no money shall be paid out of the treasury except (a) upon appropriations duly made by law (see Art. 31) : Me. C. 5,4,4 ; Vt. C. 2,17 ; KY. C. 7,8 ; KJ. C. 4,6,2 ; Pa. C. 3,16 ; 0. C. 2,22 ; Ind. C. 10,3 ; 111. C. 4,17 ; Mich. C. 14,5 ; Wis. C. 8,2 ; lo. C. 3,24 ; Minn. C. 4,12 ; 9,9 ; Kan. C. 2,24 ; Neb. C. 3,22 ; Md. C. 3,32 ; Del. C. 2,15 ; Va. C. 10,10 ; W.Va. C. 10,3 ; N.C. C. 14,3 ; Ky. C. 8,5 ; Tenn. C. 2,24 ; Mo. C. 4,43 ; Ark. C. 5,29 ; 16,12 ; Tex. C. 8,6 ; Cal. C. 4,22 ; Ore. C. 9,4 ; Nev. C. 4,19 ; Col. C. 5,33 ; S.C. C. 2,22 ; 9,12 ; Ga. C. 3,7,11 ; Ala. C. 4,33 ; Miss. C. 4,26 ; Fla. C. 4,16 ; 12,4 ; La. C. 43 ; [Ariz.* Bill of Rts. 26]. And there must be warrants drawn by the proper officer : N.H. C. 2,56 ; Mass. C. 2,2,1,11 ; Pa. ; 111. ; Neb. ; W.Va. ; Mo. C. 10,19 ; Cal.; Col. ; Ala. (B) And in a few states, no appropriation can be made for a longer term than two years : 0., Kan., Mo., Ark., Tex., La. So, in others, the warrant must be issued within two years of the act of appropriation : N.Y., Kan., Mo. Note. — " See U.S. C. 1,9. § 321, State Accounts. By the Constitutions of most states, a regular state- ment and account of receipts and expenditures of public moneys must be pub- lished (1) annually : W Va. C. 10,3 ; N.C. C. 14,3 ; Ky. C. 8,5 ; Tex. C. 16,6 ; S.C. C. 2,22 ; Ala. C. 4,33. (2) At or after every session of the legislature, with the laws : Me. C. 5,4,4 ; Yt. C. 2,28 ; Ind. C. 10,4 ; 111. C. 4,17 ; Mich. C. 18,5 ; lo. C. 3,18 ; Minn. C. 9,11 ; Neb. C. 3,22 ; Md. C. 3,32 ; Va. C. 10,18 ; Tenn. C. 2,24 ; Cal. C. 4,22 ; Ore. C. 9,5 ; Nev. C. 4,19 ; S.C. C. 9,11 ; Ga. C. 3,7,11 ; Fla. C. 12,5. (3) In such manner as by law directed : Ct. C. 4,21 ; 0. C. 15,3 ; Kan. C. 15,5 ; Mo.C. 10,19 ; Ark. C. 19,12 ; Tex. (4) Every three mouths : Ga., La. (5) Every two years: Del. C. 2,15. 6 82 FINANCE. § 322. Private Appropriations, Claims, and Debts. (A) The Constitution of Illi- nois provides that tlie legislature shall make no appropriation of money out of the treasury in any private law : 111. C. 4,16. So, in Texas, that no appropriation for private or individual purposes shall be made : Tex. C. 16,6. Compare Art. 39. So, in several states, no appropriation of money or grant of property can be made by the state to any individual or corporation, municipal or otherwise : N.J. C. 1,20 ; Neb." C. 3,18 ; Mo. C. 4,46 ; Tex. C. 3,51 ; Ga. C. 7,16,1 ; La. C. 56. See also in § 326. And in IlUiiois, specially, the Illinois and Michigan Canal can never be sold or leased but by vote of the people : 111. C. Sep. Section 3. E.rccpt, that in two states a grant of aid may be made in case of a public calamity : IMo., Tex. And a right of way through public land may, in one, be granted to a railroad or canal : La. (B) The Constitutions of two states provide that the legislature shall not audit nor allow any private claim-* or account : N.Y. C. 3,19 ; Mich. C. 4,31 ; [Ariz.* Bill of Rights, 28]. Nor, in several, authorize the payment of any claim against the state under an agreement or contract made without the authority of law : 111. C. 4,19 ; W.Va. C, 6,38 ; Mo. C. 4,48; Tex. C. 3,53 ; Cal. C. 4,32 ; Ala. C. 4,28 ; La. C. 45. Or of any such claim against a municipality : Tex., Cal., La. And all such private or special contracts are void : III., W.Va., Mo., Cal., La. Nor, in a few, can money be paid on any claim the subject-matter of which is not provided for by pre-existing laws: Pa. C. 3,11; 0.'' C. 2,29; lo. C. 3,31 ; Ark.'^ C. 5,27; Tex. C. 3,44; Nev. C. 4,28 ; Cob C. 5,27 and 28. So, in two, no special act making compensation to a person claiming damages against the state can be passed : Ind. C. 4,24 ; Ore. C. 4,24. In Maryland, the legislature can appropriate no money in payment of a private claim over S3f)0 unless proved before the comptroller and reported on by him : Md. C. 3,52. And spe- cially, in Indiana (C. 10,7), the state is freed from all liability on account of Wabash & Erie Canal stock. Exceptions. But, in two states, the legislature may appropriate for expenses incurred by private persons in suppressing insurrection or repelling invasion : 111., W.Va. (C) The Constitutions of several states provide that the legislature shall have no power to release or extinguish, or to authorize the releasing or extinguishing, in whole or in part, any indebtedness or liability of any corporation or individual to the state (or, in Illinois or Colorado, to any municipal corporation therein) : 111. C. 4,23 ; Va. C. 10,21 ; Mo. C. 4,51 ; Ark. C. 5,33 and 12,12 ; Tex. C. 3,55 ; Col. C. 5,38; La. C. 57. This follows, practically, in other states, from the provisions of § 395: Md., Cal. So, in several, the lesislature have no power to release, alienate, or alter the lien held by the state upon (I) any railroad : Pa. C. 3,24 ; Mo. C. 4,50 ; Ark. C. 5,33 ; Tex. C. 3,54. Or (2) as against any corporaMon : N.Y. C. 7,4 ; Pa. And in Blinois, specially, of the Illinois Central Railroad, no lien, contract, obligation, or liability, in the original charter, shall ever be released or impaired: 111. C. Sep. Section 1. (D) In one state, no claim shall be allowed (by the legislature ov other body or officers act- ing for the state) against the State which would be barred by lapse of time if made against a private person : N.Y. C. 7,14. Except that a claim may be so prosecuted within two years of the removal of a legal disabil- ity of the claimant : N.Y. NoTKS. — « As to f^ants of land only. ^ See §§ 75,553. " Such claim may, however, be allowed on a two-tliirJs vote of the full legislature. * § 323. Charitable and Sectarian Appropriations. The Constitutions of a few states provide that no appropriation shall be made for private, charitable, educational, or benevolent purposes to any person or community or any corporation not wholly under the state authority : Pa. C. 3,17; Cal C. 4,22; Col. C. 5,34 ; La. C. 51. See also §§ 44,54. Exceptjona. (Sec § 313.) But in California, c:rants of aid may be made (1) to orphan or iudisieut asylums in accordance with a uniform rule. And in Pennsylvania, (2) to asylums for soldiers' widows or orphans : Pa. C 3,19. TAXATION. 83 § 324. Internal Improvement. By the Constitution of Michigan the state cannot be interested in works of internal improvement." Nor, in Alabama, loan its credit in support of such works : Ala. C, 4,54. Nor, in several states, create or contract debts for them : 0. C. 12,6 ; Wis. C. 8,10 ; Minn." C. 9,5 ; Md. C. 3,34 ; Ala. Nor be a party to carrying on such works : Mich. C. 14,9 ; Wis. ; Minn. ;" Kan. C. 11,8 ; Md. ; Va. C. 10,15; Ala. But the Tennessee Constitution declares that a well-regulated system of internal improve- ment should be encouraged by the legislature : Tenn. C. 11,10. And in Mississippi there is a board of pubUe works established for that purpose : Miss. C. 10,1. See also $ 202. Note.— « See, however, § 361. § 325. Miscellaneous Restrictions. The Constitution of Texas provides that the state shall make no appropriation for a bureau of, or to encourage or assist, immigration : Tex. C 16,56. § 326. Loans of Credit," etc. The State, by the Constitutions of most of the states, cannot (A) lend money or its credit to any individual, association, or cor- poration, municipal or otherwise, whatever : Me. C. 9,14 ; N.Y. C. 7,9 ; 8,10 ; N.J. C. 4,6,3 ; Pa. C. 9,6 ; 0. C. 8,4 ; Ind. C. 11,12 ; 111. C. 4,20 ; Mich. C. 14,6 ; Wis. C. 8,3 ; lo. C. 7,1 ; Minn. C. 9,10 ; Neb. C. 14.3 ; Md. C. 3,34 ; Va. C. 10,12 ; W.Va. C. 10,6 ; N.C. C. 5,4 ; Ky. C. 2,33 ; Tenn. C. 2,31 ; Mo. C. 4,45 ; Ark. C. 16,1 ; Tex. C. 3,50 ; Cal. C. 4,31 ; Nev. C. 8,9 ; Col. C. 11,1-2 ; Ga. C. 7,5,1 ; Ala. C. 4,54 ; Miss. C. 12,5 ; Fla. C. 12,7 ; La. C. 56. ExcejJt, in Nevada, corporations fur religious or charitable purposes. So, specially, it cannot loan, etc., to railroads or canals : III. C. Sep. Section 3. (b) Nor, in many, can the state become a stockholder or bondholder in any corporation : Pa. ; 0. ; Ind. ; Mich. C. 14,8 ; lo. C. 8,3 ; Va. C. 10,14 ; W.Va. ; Tenn. ; Mo. C. 4,49 ; Ark. C. 12,7 ; Cal. C. 12,13 ; Ore. C. 11,6 ; Nev. ; Col. ; Ga. ; Miss. ; Fla. ; La. ; Ariz.* Bill of Ptts. 27. So, specially, not in any bank: Ind., 111., Kan., Tenn., Mo., Ala. See § 480. The Constitution of Alabama provides, in general terms, that tbe state may not be interested in any private or corporate enterprise : Ala. C. 4,54. (C) Nor, in many, can it assume the debts of any individual or municipal cor- poration : Pa. C. 9,9 ; O. C. 8,5 ; Ind. C. 10,6 ; 111. ; lo. ; Va. C. 10,17 ; ^V.Va ; Ark. C. 12,12 ; Tex. ; Cal. ; Ore. C. 11,8 ; Nev. C. 9,4 ; Col. ; Ga. C. 7,8,1 ; La. Except, in several, when incurred in time of war for the benefit of the state : Pa., 0., lo., Arli., Ore., Nev., Ga. (D) Nor, in Tennessee, can any bonds of the state be issued to any railroad which is in default in paying interest on bonds previously loaned to it, or has sold them for less than par : Tenn. C. 2,33. Limitations, But in North Carolina, the credit of the state may be so loaned, contrary to the above rules, upon vote of tlie people. KoTE. — « Compare § 316. § 327. Money. The Constitution of Texas provides that the state shall have no power to issue treasury notes or warrants intended to circulate as money : Tex. C. 16,7. So, in Wash- ington Territory, by U.S. R. S. 1925. Art. 33. Taxation. (For statutes on this subject, see in Part III.) § 330. General Principles, (a) In the Constitutions of several states it is declared that every member of society is bound to contribute his proportion to the expenses of government ; but no part of his property can be taken without 84 FINANCE. his own consent or legislative authority:'' KH. C. 1,12; Mass. C. 1,10 ; Vt. C. 1,9 ; Md. Decln. of Rts. 14 and 15 ; Va. C. 1,8 ; S.C. C. 1,3-6 and 37. (b) So, in many, no tax, impost, duty, or charge can be levied except (1) in pursuance of a law: 0. C. 12,5; Kan. C. 11,4; Mo. C. 10,1; Ark. C. 16,11; Ore. C. 9,3; S.C. C. 9,4; Fla. C. 12,3. Or (2) "by consent of the people:" N.H. C. 1,28 ; Mass. C. 1,23 ; Me. C. 1,22 ; N.C. C. 1,23 ; Ore. C. 1,32 ; S.C. C. 9,4. Or (3) "by consent of their representatives in the legislature : " N.H., Mass., Me., Md., K.C., Ore., S.C. And in Vermont, previous to any law for a tax, the purpose for which the tax is levied ought to appear of more importance to the community than the money woukl be if not col- lected. By the Constitution of one state, '' the state's ancient right of eminent domain, and of taxation, is expressly and fully conceded : " Ark. C. 2,23. In Georgia, taxation is declared to he a sovereign right of the state, absolutely inalienable : Ga. C. 4,1,1. In several, the legislature has no power to release (in Louisiana, postpone) the inhabitants of, or property in, any town or county from payment of state or county taxes : 111. C. 9,6 ; Neb. C. 9,4 ; Mo. C. 10,9 ; Tex.^' <^ C. 8,10 ; Cal. C. 11,10 ; Col. C. 10,8; La.^ C. 212. So, in others, the power to tax shall not be surrendered- or sus- pended by any act, contract, or grant to which the state is a party : Me. C. 9,9 ; Cal. C. 13,6 ; Ga. ; so, specially, of the power to tax corporations and their property : Pa. C. 9,3 ; Mo. C. 10,2 ; Ark. C. 16,7 ; Tex. C. 8,4 ; Col. C. 10,9 ; Ga. C. 7,2,5 ; La. C. 205. And in several, no power to levy taxes can be delegated to individuals or private corporations: Pa. C. 3,20; Cal. C. 11,13; Cob C. 5,35; Ga. C. 4.1,1; Ala. C. 11,2. See § 340. In Illinois, the Constitution provides that the specification therein of the objects and sub- jects of taxation shall not deprive the general assembly of the povper to require other subjects or objects to be taxed in such manner as may be consistent with the principles of taxation fixed in the Constitution : 111. C. 9,2. Notes. — « Compare Ai-t. 9. >> Except in case of great public calamity, and "^ by a two-thirds vote of each house. § 331. Taxable Property. In many states, the Constitution declares that all property, real and personal and mixed, is taxable : 0. C. 12,2 ; Ind. C. 10,1 ; Minn. C. 9,3 ; Va. C. 10,1 ; W.Va. C. 10,1 ; N.C. C. 5,3 ; Tenn. C. 2,28 ; Cab C. 13,1 ; Nev. C. 10,1 ; Cob C. 10,3 ; S.C. C. 9,1 , Fla. C. 12,1. In two, taxes " shall be levied upon such propertv as is described by law : " Mich. C. 14, 11; Wis. C. 8,1. In one, the personal pro{)orty of residents of the state is taxable in the county or city where the resident bona fide resides for the greater part of the year ; and not elsewhere, except goods and chattels "permanently located: " Md. C. 3,51. But in two, all property is to be assessed where situated (except rolling stock, etc., of railroads) : Tex. C 8,11 ; Cal. C. 13,10. Laud and the improvements thereon are to be separately assessed : Cal. C. 13,2. Mort- gages are taxed to the owner, and the property less the value of the mortgage to the mort- gagor : Cal." C. 13,4. And all contracts by which the debtor is to pay the taxes on mortgages or money loaned are void : Cal. C. 13,5. In Texas, all ]iroperty of railroads in towns shall bear its share of municipal taxation : Tex. C. 8,5. And all property of railroads shall be taxed : Tex. C. 8,8, The pi-operty of all corporations shall, by several state Constitutions, be subject to taxation the same as that of individuals : 0. C. 13,4 ; Jo. C. 8,2 ; Nev. C. 8,2 ; Cob C. 10,10 ; S.C. C. 12,2 ; Ala. C. 11,6 ; Miss. C. 12,13 ; Fla. C. 16,24. So, in Iowa, but of corporations for pecuniary profit only : lo. C. 8,2. In Maryland, the legislature are to provide for the taxation of the revenue of foreign corporations doing business in the state : Md. C. 3,58. In three states, mines and mining claims may not be directly taxed, but only their proceeds : Nev. C. 10,1 ; Cob C. 10,3; S.C.C. 9,1. Note. — " Except mortgages by railroads, etc. TAXATION. 85 § 332. Exemptions. The following are the constitutional" exemptions from taxation : — (A) Burying-grounds : Pa.* C 9,1 ; 0.'' C. 12,2 ; 111.* C. 9,3 ; Minn. C 9,3 ; Neb.* C. 9,2; W.Va.*C. 10,1; N-C'-C. 5,5; Mo. C. 10,0; Ark. C. 16,5; Tex.*,<^C. 8,2; Col.-^ C. 10,5; S.C. C. 9,5 ; Ga.*- <= C. 7,2,2 ; Ala. C. 4,52 ; La.-^ C. 207. (B) Public school-houses : 0.;* Minn.; Cal. C 13,1 ; Col.; S.C; La.'^ School buildings and apparatus : Ark., Tex.,* S.C, Ga.,*> " La. Libraries and grounds used for school purposes : Ark., Col., S.C, Ga.,*. -^ La.'' (C) Churches : Pa.,* 0.,* Minn., Ark., Tex.,* S.C, Ga.,*. <= La.-^ Church property used for religious purposes : Minn., Col. Pubhc hospitals : Minn., S.C (D) Academies: Minn., S.C, Ga.*><' Colleges, universities, and seminaries of learning: Minn., S.C, Ga.,*.= La.<= Public libraries: Col. C 10,4 ; S.C. ; Ga. ; * La. Books, paintings, and statuary kept in a free public hall : Ga.,*' <' La.*' Institutions of purely public charity : Pa.,<^ 0.,* Minn., Tex.,* S.C, Ga.,*-^ La. (E) Public property used exclusively (1) for any public purpose : Pa. ; * 0. ; * Minn. ; Kan. C 11,1 ; W.Va. ;* Tenn.* C 2,28 ; Ark. ; Tex. C 11,9 ; Ore.* C 9,1 ; Nev.* C 10,1. Or for (2) any municipal purpose : Ind.* C 10,1 ; Kan. ; Va.* C 10,3; S.C* C 9,1 ; Fla.* C 12,1. (3) All public property: Ga.,*-'' La.« (F) So, any property (real or personal), held (1) for educational purposes : Ind.;* 111.;* Kan.; Neb.;* Va. ;* W.Va.;* N.C;* Teun. ; * Ore.;* Nev.;* S.C;* Ala.* C 11,6; Fla.* C 16,24. (2) For scientific purposes : Ind.,* Kan., W.Va.,* N.C,* Tenn.,* Ore., Nev.,* S.C,* Fla.* (3) For literary purposes: Ind.,* Kan., W.Va.,* N.C,* Tenn.,* Ore.,* Nev.,* S.C,* Fla.* (4) For charitable purposes: Ind.,* 111., Kan., Neb.,* Va.,* W.Va.,* N.C,* Tenn.,* Ark., Ore.,* Nev.,* Col., S.C,* Ala.,* Fla.* (5) For religious purposes : Ind.,* 111.,* Kan., Neb.,* Va.,* W.Va.,* N.C,* Tenn.,* Ore.,* Nev.,* S.C,* Ala.,* Fla.* (6) By agricultural or horticultural societies : 111. ; * Neb. ; * Mo.* C 1 0,6 ; Ala. So, (7) lots in towns, within one mile of the limits, to one acre in extent ; and lots one mile or more distant from towns to five acres in extent, with buildings thereon, used exclusively for religious, school, or purely charitable purposes : Mo.,* Ala. (Gr) In several, lands (1) the property of the United States, are exempt: Wis. C 2,2; Minn. C. 2,3; Kan. C Ordinance; Mo. C 14,1 ; Nev. Ordinance. (2) All property exempt by United States laws: Cal. C 13,1. (3) All property belonging to the state: 111.; Neb.; Va. ;* N.C; Tenn.; Mo.; Cal.; Col. C 10,4; Ala. (4) All property belonging to the United States : Cal. ; Territories,* U.S. E. S. 1851. (5) All property belonging to municipal corporations : Ind. ;* 111. ; * Neb. ; Va. ;* N.C; Mo. ; Tex. C 8,1; Cal. ; Nev.* C 8,2; Col. ; Ala. (6) The property of religious corporations: Nev.,* Fla.* Or of charitable corpora- tions : Nev.,* Fla.* Or of educational corporations : Nev.,* Fla.* (H) In Colorado, the legislature may exempt for a time the increase in value of private lands caused by the planting of hedges, orchards, and forests: Col. C 18,7. (I) The personal property of every individual is exempt, to the value (1) of $200: 0.,* Minn., Kan. (of every family). (2) Of $1,000 : Tenn. (3) Household property to the value of $500 : La. Of 1250 : Tex. C 8,1. (J) Growing crops are exempt : Cal. So, the direct products of the soil in the hands (1) of the producer: Tex. C 8,19 (1879, p. 192); Tenn. C 2,30; (2) and of his immediate ven- dee : Tenn. And no articles manufactured of the produce of the state shall be taxed otherwise than to pay inspection fees : Tenn. C 2,30. Supplies for home or farm use are exempt : Tex. (K) All wearing apparel is exempt : N.C* Arms for muster : N.C* All household furni- ture : N.C* See also in I. Mechanical instruments of mechanics and agricultural imple- ments of fanners : N.C* Libraries: N.C* Scientific instruments: N.C* But the total value of exemptions under this paragraph, K, cannot exceed $300 : N.C. Except as above, all laws exempting property from taxation are, in several states, void : Pa. C. 9,2 ; Mo. C 10,7 ; Ark. C. 16,6 ; Tex. ; Col. C. 10,6 ; Ga. C. 4,2,4. Notes. — " See Part III. for statutes. See also § 394. * In these states the Constitution only pro- vides that this property may be exempted by law. <= In these states, only those burying-grounds, etc., which are not held for personal or corporate profit. § 333. Taxes Equal. The Constitutions of many states provide that taxation shall be equal and uniform throughout the state," or throughout each municipality 36 FINANCE. levying a tax :* KJ. C. 4,7,12 ; Pa.* C. 9,1 ; Ind. C. 10,1 ; Mich. C. 14,11 ; Wis. C. 8,1 ; Minn. C. 9,1 ; Kan. C. 11,1 ; Va.<^ C. 10,1 ; W.Va.^ C. 10,1 ; N.C. C. 5,3 ; Teun.<^ C. 2,28 ; Mo.* C. 10,3 ; Ark.<^ C. 16,5 ; Tex. C. 8,1 ; Ore. C. 1,32 ; 9,1 ; Nev. C. 10,1 ; Col.* C. 10,3 ; S.C. C. 9,1 ; Ga.* C. 7,2,1 ; Miss. C. 12,20 ; ria. C. 12,1 ; La. C. 203 ; Wash.^ U.S. K. S. 1924. Lauds belonging to persons resident out of the state cannot, in several, be taxed higher than lands belonging to residents : Wis. C. 2,2 ; Minn. C. 2,3 ; Kan. C. Ordi- nance ; Mo. C.14:,l ; Nev. Ordinance; Territories, U.S. E. S. 1851. Notes. — « Except as in § 339, note. * i. e., in the same class of subjects ; but <= in the noted states, " no one species of property can be taxed higher than another species, of the same vakie." § 334. Valuation and Assessment. In most states, the Constitution provides that all taxes levied shall be assessed in exact proportion to the value " of the prop- erty : Mass. C. 2,1,1,4 ; Me. C. 9,8 ; KJ. C. 4,7,12 ; Ind. ; 111. C. 9,1 ; Mich." C. 14,12; Minn.;« Neb. C. 9,1; Va. ; W.Va. ; N.C. ;° Tenn. ; Mo. C. 10,4 ; Ark. ; Tex. ; Cal. C. 13,1 ; Ore. C. 9,1 ; S.C. C. 1,36 ; Ga. ; Ala. C. 11,1 ; Miss. ; La. ; " Wy.* and Dak.* U.S. E. S. 1925. For citations, see also § 333. In several, the legislature is to provide for a just valuation, (1) no time being speci- fied : R.I. C. 4,15 ; Nev. C. 10,1 ; Col. C. 10,3 ; Fla. (2) There must be such valu- ation every five years : N.H. C. 2,6 ; Mich. C. 14,13 ; Va. C. 10,6 ; S.C. C. 2,33 ; 9,6. And (3) every ten years : Mass. C. 2,1,1,4 ; Me. C. 9,7. In Louisiana, the assessment of all property shall never exceed the actual cash value thereof. Taxpayers have a constitutional right of testing the correctness of their assessments in the courts. The valuation put on property for purposes of state taxation must he taken as the proper valuation for local taxation : La. C. 203. In California, cultivated and uncultivated land of the same quality and similarly situated are to be assessed at the same value : Cal. C. 13,2. Notes. — "In the noted states, the cash value. ^ See § 333, note <'. § 335. Purposes of Taxation. The Constitutions of many states prescribe certain limits to the taxing power. Thus, taxes can be levied for the following purposes only : (1) In many, for the ordinary expenses of the state government and public state institutions : N.H. C. 2,5 ; Mass. C. 2,1,1,4 ; Mich. C. 14,1 ; Wis. C. 8,5 ; Minn. C. 9,2 ; Kan. C. 11,3 ; Va. C. 10,20 ; W.Va. C. 10,5 ; Ark. C. 3,31 ; Tex. C. 3,48 ; Ore. C. 9,2 ; Nev. C. 9,2 ; Col. C. 10,2 ; S.C. C. 9,3 ; Ga. C. 7,1,1 ; Fla. C. 12,2 ; La. C. 204. (2) For the costs of collecting the revenue : Tex. (3) To pay any deficiency in the finances of the previous year : Wis. ; Minn. ; W.Va. ; Ore. C. 9,6 ; Nev. ; S.C. (4) To pay the interest on the state debt : Mich., Va., W.Va., Ark., Tex., Ore., Ga., Fla., La. (5) To pay the principal of the state debt : Mich.," Va., W.Va., Ark., Ga., Fla., La. So, in Texas, for the benefit of a sinking fund, which (tax 1) shall not be more than two per cent of the state debt. (6) For educational purposes, generally : Mich.," Ga., Fla., La. ; or for the support of free schools : W.Va., Ark., Tex. (7) To suppress insurrection, repel invasion, and defend the state in time of war : Ark., Ga., La. ; so, to protect the frontier : Tex. ; so, for the necessary defence of the government : N.H., Mass. (8) For the erection and repairs of public buildings : Tex. ; for maintaining and erecting levees : La. C. 213. (9) To supply Confederate soldiers with wooden legs and arms : Ga., La. (10) For the enforcement of quarantine regulations : Tex. (11) To provide " such rev- enue as may be needful :" Neb. C. 9,1. (12) Taxes can be levied for public purposes only : Mo. C. 10,3 ; Tex. 8,3. (13) No tax can be levied for paying the interest on the bonds of any chai'tered company : Fla. C. 12,8. Lut taxes for other purposes may be enacted according to the provisions of § 314 : Ark. Note. — " Specific taxes (§ 339) only are levied for these purposes. TAXATION. 87 § 336. Amount of State Tax. The Constitutions of a few states limit the amount of state taxation lor any one year. Thus, in Alabama, not more than .75 per cent: Ala. C. 11,4. In two states, not more than .GO per cent: Col. C. 10,11; La. C. 209; or .40 when the state valuation reaches $100,000,000: Col. In Texas, not more than .85 per cent: Tes-" C. 8,9; Amt. 1883. In Arkansas, not more than one per cent: Ark. C. 16,8. In Missouri, not more than .20 per cent ; or .15 per cent when the state valuation shall exceed $900,000,000 : Mo." C. 10,8. Note. — « Exclusive of the tax to pay interest on the state debt. § 337. Special State Taxes. The Constitutions of four states give the legislature authority to levy a special tax in aid of the common schools : Miss. C. 8,10; so, in Florida, not less (1) than one tenth per cent : Fla. C. 8,5; (2) not greater than one fifth per cent : Ark. C. 14,3. (3) A tax may be levied of one twentieth per cent : Nev. C. 11,6. § 338. Poll-Tax. (A) By the Constitutions of two states, poll-taxes are declared oppressive, and prohibited : 0. C. 12,1 ; Md. Decln. of Rts. 15. (B) But in many states, the Constitution provides that a poll-tax may be imposed, (1) not to exceed $1 per head : R.I.« C. 2,3 ; Ya." C. 10,5 ; W.Va. C. 10,2 ; Tenn. C. 2,28 ; Ark. C. 14,3 ; S.C. C. 9,2 ; Ga. C. 7,2,3 ; Fla. C. 12,6 ; (2) not to exceed $1.50 per head: Ala. C. 11,1 ; La. C. 208; (3) not more than $2 per head: N.C.« 5,1; Miss. C. 8,7 ; (4) not less than fifty cents per head : Tenn. ; " (5) not less than $2 per head : Cal. C. 13,12 ; Nev. C. 2,7 ; (6) not less than $1 per head : Tex. C. 7,3 ; La. ; (7) not more than $4 per head : Nev. (8) Nothing is said about the amount : Va. C. 10,5. (C) Poll-taxes may be imposed (1) on all male inhabitants between the ages of twenty-one and sixty : Tex., Cal., Nev. ; (2) twenty-one and fifty : N.C. ; (3) on all over twenty-one : Va., W.Va., Ark., La. Except, paupers : N.C, Cal. ; idiots : Cal. ; insane persons : Cal. ; the aged or infirm : W.Va., N.C, Tenn. ; Indians not taxed or uncivilized : Cal., Nev. No additional poll-tax can, in one state, be levied by any municipal corporation or by the State : S.C. C. 10,5. Poll-taxes are, in several states, to be applied exclusively to the common-school fund : R.I. ; Va. ; ' W.Va. ; Ark. ; Tex. ; Cal. ; S.C. ; Ga. ; Ala. C. 13,4 ; Miss. ; La. C. 227. Or, in North Carolina, to purposes of education ; and part of it, not more than one fourth, to the poor : N.C. C. 5,2. Notes. — « It seems counties and towns may also levy a poll-tax to the same amount. * To the amount of fifty cents. " Of the part of the poll-tax imposed by the State. § 339. Income and License Taxes. (A) By the Constitutions of five states, income taxes may be imposed : Va. C. 10,4 ; N.C. C. 5,3 ; Tenn. C. 2,28 ; Tex. C. 8,1 ; Cal C. 13,11. But by one, the tax is limited to such incomes as exceed $600 a year : Va. And in two, it cannot be imposed on incomes derived from taxed property: N.C, Tenn. (B) License Taxes, Special, Specific, or Occupation taxes, may, by tlie Constitutions of some states, be imposed. As, in detail, (1) upon pedlers: lU. C. 9,1 ; Neb. C. 9,1 ; Va. C. 10,4; Tenn. C. 2,28 ; Ark. C. 16,5. (2) Hawkers: Neb., Ark. (3) Auctioneers: lU., Neb. (4) Brokers :I11., Neb., Va. (5) Pawnbrokers : Va. (6) Merchants: Ilk, Tenn. (7) Com- mission merchants : m.,Neb.,Va. (8) Persons selling: by sample : Va. (9) Showmen: Ilk, Neb., Va., Ark. (10) Jugglers: IlL, Neb., Va. (11) Innkeepers: 111., Neb. (12) Liquor dealers: 111., Neb., Va. (13) Grocery keepers : 111. (14) Toll bridges : 111., Neb. (15) Fer- ries : Ilk, Neb., Ark. (16) Insurance business : Ilk, Neb. (17) Telegraph business : 111., Neb. (18) Express business : Ilk, Neb. (19) Venders of patents : 111.. Neb. (20) Gener- ally, upon all persons or corporations using franchises or privileges : 111. ; W.Va. C. 10,1 ; N.C. C. 5,3 ; Tenn. ; Ark. (21) Upon corporations generally : Mich. C. 14,10 ; Mo. C. 10,21. (22) Banks, and banking companies: Minn. C. 9,4; Kan. C 11,2. (23) Railroads: Mo. C g8 FINANCE. 10,5. (24) Destructive domestic animals: Ga. C. 7,2,1. (25) Generally, upon all businesses which cannot be reached by the ad valorem system: Va. So, (26) upon trades: N.C. (27) Professions : N.C. So, (28) generally, upon persons or corporations doing business : Tex. C. 8,1. Such taxes must be uniform upon each class upon which they operate : Neb. They cannot be imposed on mechanical or agricultural pursuits: Tex. Nor upon licenses: Fla. C. 12,6. In Louisiana they may be imposed on all persons except clerks, laborers, clergymen, school teachers, those engaged in mechanical, agricultural, horticultural, and mining pursuits, and manufacturers of anything except liquor, tobacco, etc., and cotton-seed oil: La. C. 206. Art. 34. Municipal Finance and Taxation. (See in Part III. for statutes.) § 340. General Principles. By the Constitutions of many states, the legisla- ture shall not impose taxes upon counties, cities, or other municipalities, or upon the inliabitants or property thereof, but may by laws "" vest in the corpo- rate authorities thereof the power to tax : 111. C. 9,9-10 ; Neb. C. 9,6-7 ; W.Va. C. 10,9 ; Tenn. C. 2,29 ; Mo. C. 10,10 ; Cal. C. 11,12 ; Col. C. 10,7 ; Fla. C. 12,6 ; La. C. 202. Compare § 510. And in three, counties and townships shall have such powers of local taxation as may be prescribed by law : Minn. C. 11,5 ; Ark. C. 2,23 ; S.C. C. 9,8. The principles of taxation are generally the same in municipal as in state taxation : Tenn.; Fla.; La. C. 218. So, in several, such taxes must be imiform as to persons and property (except as in § 342) : 111. C. 6,9 ; Neb. ; W.Va. ; N.C. C. 7,9 ; S.C. And must be levied accord- ing to the value of the property : N.C, Tenn. So, in Missouri, taxes for municipal puq)Oses may be levied on all property subject to state taxation: Mo. C 10,11. And the valuation of property for municipal purposes must be the same as for state purposes: La. C 203. Or, in Missouri, not greater than the valuation for state purposes. jfoTE. — " Usually, by general laws only ; see Art. 39. § 341. Amount of Municipal Tax. The Constitutions of a few states limit the amount of municipal taxation for any one year. Thus, in ten, the rates (a) of county taxation are limited. (1) No county can assess more than one half per cent on the valuation : Ark. C. 16,9. Ala. C. 11,5. (2) Not more than three fourths per cent: 111. C 9,8. (3) Not more than ninety-five cents per $100: W.Va. C. 10,7. (4) Not more than one per cent: La. C. 209. (.")) Not more than one and one half per cent : Neb. C. 9,5. (6) Not more than two per cent: N.Y.'' C. Amt. 1884, p. 739. (7) Not more than one half the state tax (i. e., not more than one fourth per cent) : Tex. C. 8.9 ; Amt. 1883. (8) Not more than twice the state tax, except for special purpose, and with the special approval of the legislature : N.C. C. 5,6. (9) The rate in counties not exceeding $6,000,000 in valuation shall not in the aggregate exceed one half per cent ; in counties between six and ten millions, it must not exceed four tenths per cent ; in counties between ten and thirty millions, not greater than one half per cent ; in counties over thirty milliims, not more than thirty-five hundredths per cent: Mo. C. 10,11. Except, that, in some states, certain taxes are not to be included in the amounts respectively above Umited: as. (1) "special taxes authorized by law : " Ala. (2) Taxes for free schools: W.Va.; Ark. C. 14,3. (3) Taxes for debts already incurred: 111., Neb., W.Va., Ark., Tex. (4) Taxes for the erection of public buildings : Tex. (but such taxes must not exceed one lialf per cent in any one year: Tex ). (5) Taxes, not over fifteen hundredths per cent, for roads and bridges : Tex. See also § 343. In a few, municipal corporations generally may levy a greater rate than as above limited, with a vote (1) of the properti/ tax-payers at an election : La." (2) By vote of the electors of the county generally : 111., Neb. (3) By three-fifths vote of such electors : W.Va. (B) So, in some, no town or city may levy a tax (1) of more than one half per cent in any one year : Ark. C. 12,4 ; Ala. C. 11,7. (2) No town not having a special charter can so MUNICIPAL FINANCE AND TAXATION. 89 levy a tax of more than one fourth per cent: Tex. C. 11,4; and cities having more than 10,000 population, not more than two and one half per cent: Tex. C. 11,5. (3) The rate in cities and towns having over 30,000 inhabitants may not exceed in the aggregate one per cent; between 10,000 and 30,000 inhabitants, not over six tenths per cent; between 1,000 and 10,000, not over one half per cent; under 1,000, not over one quarter per cent; and in school districts, for school purposes, not over four tenths per cent ; but for school purposes these rates may be increased by a majority vote of tax -paying voters at a special election, and for the erection of public buildings, by a two-thirds vote of all voters, at such an election : Mo. Except, taxes to pay valid indebtedness now existing or hereafter renewed : Mo., Ark., Ala. Notes. — " Such tax to be for public works. * See § 371, note '^. § 342. Prescribed Purposes. In Wisconsin, the Constitution provides that each town and city shall raise, by tax, annually, for the support of the common schools, a sum not less than half the sum received for such purposes from the state school fund: Wis. C. 10,4. In North Carolina, no county, town, etc, shall levy a tax, except for its necessary expenses, without a special vote of the electors : N.C C. 7 ,7. In Arkansas, the legislature may, by general law, authorize school districts to levy, by a vote of the qualified electors, a tax for school purposes, not to exceed one half per cent : Ark. C. 14,3. In Georgia, counties may levy taxes for schools under special authority of the legislature and a two-thirds vote of the county: Ga. C. 8,4,1. In Texas, counties may raise a special tax for common schools not exceeding one fifth per cent : Tex. C. Amt. 1883. Counties, towns, etc., may levy taxes (1) for their current annual expenses : Tex. C 11,6 ; (2) for educational purposes : Ga. C. 7,0,2 ; (3) for the interest and sinking fund of debts already created : Tex. ; (4) for the building and repair of court-houses, gaols, bridges, and other necessary conveniences for the people of the county : Ga. ; Miss. C. 12,16. The Con- stitution of South Carolina provides that there shall be an annual tax of one fifth per cent in each county for the support of its public schools : S.C. C. 10,5, Amt. § 343. Special Taxes for local improvements may be made ; either (1) by general assessment : 111. C. 9,9 ; Xeb. C. 9,6 ; or (2) by betterment tax on contiguous property : 111. ; Minn. C. 9,1 ; Neb. ; Ark. C. 19,27; Cal. C. 11,19. But such betterment taxes must be consented to by a majority of property holders in the locality affected, and they must be ad valorem and uniform : Ark. So, in Louisiana, a special tax not exceeding one half per cent, nor for more tlian ten years, may be levied in aid of railroads or public improvements by vote of a majority of the tax-payers : La. C. 242. The betterment tax must be collected before the work is commenced : Cal. § 344. Power to Contract Loans, etc. The Constitutions of several states provide that the power of municipal corporations to tax, borrow money, contract debts, or loan credit, shall be restricted so as to prevent the abuse of such power: N.Y. C. 8,9 ; O. C. 13,6 ; Mich. C. 15,13 ; Wis. C. 11,3 ; Kan. C. 12,5; N.C. C. 8,4 ; Ark. C. 12,3 ; Ore. C. 11,5 ; Nev. C. 8,8 ; S.C. C. 9,9. But in Nevada, that there can be no restriction on the power of municipalities to tax, borrow, loan, etc., for the purpose of getting a water supply. § 345. Loans of Credit, etc. (a) By the Constitutions of most states, no town, county, or municipality can give money or property (1) to any corporation having for its object a dividend of profits : N.H. C. 2,5 ; or (2) to any indi- vidual or corporation whatever : KY. C. 8,11 ; KJ. C. 1, Amt. 19 and 20; Pa. C. 9,7; 0. C. 8,6; Ind. C. 10,6; 111. C. separate section; Wis. C. 11,3; Mo. C. 4,47 ; 9,6 ; Ark. C. 12,5 ; Tex. C. 3,52 and 11,3 ; Cal. C. 4,31 ; Ore. C. 11,9 ; Col. C. 11,2; Ga. C. 7,6,1; Ala. C. 4,55; Fla. C. 12,7 ; La. C. 56. So, (3) in a few, to any railroad corporation : Ct. C. Amt. 25 : Neb. C. 14,2. Nor (b) can it loan its money or credit to such corporations respectively N.H.; Ct.; N.Y.; N. J. ; Pa.; 0.; Ind.; III.; Tenn.C. 2,29; Mo.; Ark. C. 16,1 Tex.; Cal.; Ore.; Nev. C. 8,10; Col. C. 11,1; Ga. ; Ala.; Miss. C. 12,14; Fla. 90 FINANCE. La. (So, in Maryland, no county can loan its credit to any association or cor- poration : Md. C. 3,54.) Xor, (C) in several, can such town, etc., become security for such corporation : KH., N.J., Cal., Col., La. Nor, in many, (d) can such municipal corporation become a stockholder or bondholder in such private corporation: N.H. ; Ct. ; N.Y.; X. J. ; Pa.; 0.; Ind. ; 111. ; Neb. C. 12,1 ; Tenn. ; Mo. ; Ark. ; Tex. ; Cal. ; Ore. ; Nev. ; Col. C. 11,2 ; Ga. ; Ala. ; Miss. ; Fla. ; La. Excejjt, it may own stock or bonds of rail- road companies : Nev. Or of any corporation, if the stock be paid for at the time of subscription : Ind. (E) Nor can the legislature authorize such town, etc., so to do : N.H., 0., Mo., Tex., Cal., Ga., Ala., Fla. The same would follow from the constitutional pro- visions in other states. So, (P) no rauuicipality can become a stockholder, directly or indirectly, in any bank : lo. C. 8,4. (G) In other states, no municipality can become indebted or issue bonds to aid a railroad for more than ten per cent of its valuation: Minn. C 9,14 i; Neb. (see § 346) ; and five per cent additional, on a two-thirds vote : Neb. § 346. Limitations on § 345. But in some states a county, town, etc., may give or lend its property or credit, or own stock, notwithstanding § 345 (1) on vote of the electors under author- ity of law: Neb. C. 14,2; (2) on a two-thirds vote of the electors, and with authority by the legislature : Miss. C 12,14 ; (3) on a three-fourths vote of the electors : Tenn. C. 2,29 ; (4) by act of the legislature, approved also by the next legislature after publication in the locality interested : Md. C. 3,54. Art. 35. Collection of Taxes. (See in Part III. for statutes.) § 350. Sworn List. By the Constitution of California every tax-payer is required to make an fuinual statement of his taxable property under oath : Cal. C. 13,8. § 351. Sale for Taxes. The Constitution of Louisiana provides that there shall be no foifeiturc for the non-payment of taxes: La. C. 210. But there must be a sale of so much as is necessary : Tex. C. 8,13; La. So, the legisla- ture are to provide for the sale of all "delinquent tax-lands:" Miss. C. 12,8. Such sale of real estate must be after order or judgment of some court of record : 111. C. 9,4. There must, in two, be reasonable notice to the owner: 111. C 9,5; La. And in two others, the occupant must always have personal notice by service before the time of redemp- tion expires : 111. ; Neb. C. 9,3. § 352. Redemption. By the Constitutions of a few states, the owner, tenant, etc., of real estate sold for taxes may redeem (I) at any time within two years from the sale : 111. C. 9,5; Neb. C. 9,3 ; Tex. C. 8,13; (2) at any time within one ye C. 17,1 ; Mo. C. 12,14; Ark.'^ C. 17,1 ; Tex. C. 10,2; Cal."-* C. 12,17; Col. C. 15,4 ; Ala." C. 14,21 ; La. C. 244. So, in Nebraska, the liability of railroads as common earners can never be limited : Neb. C. 11,4. And, as such common carriers, they are, in California, subject to legislative control."^ Notes. — " See § 470, note *. * So, in these states, of all transportation companies. " See also § 472. § 462. Legislative Control." In several states, the Constitution provides that the legislature shall pass laws to correct abuses and prevent unjust discrimina- tion * and extortion'' in the rates of freight and passenger tariffs: 111. C. 11,15 ; Neb. C. 11,7; W.Va. C. 11,9; Mo. C. 12,14; Ark."^ C. 17,10; Tex. C. 10,2; Ga. C. 4,2,1 ; Ala.*^ C. 14,22. Notes. — ° See § 416. * See § 465. <^ See § 46-3. "^ So, of canals. § 463. Charges. So, in several, the legislature is given express power to pass laws establisliing reasonable maximum rates of fares and freight : 111. C. 11,12 ; Mich. C. 19 A, i ; Neb. C. 11,4; W.Va. C. 11,9; Mo. C. 12,14; Tex. C. 10,2. So, in one, the railroad commissioners (§ 472) : Cal. C. 12,22. By the Constitutions of a few, no railroad shall charge for freight or passengers a greater amount for a less distance than for a greater: Pa. C. 17,3; Mo. C. 12,12 ; Ark. C. 17,3 ; Cal. C. 12,21. But excui-sion or commutation tickets may be issued at special rates : Pa., Mo., Ark,, Cal. In Georgia, no rebate or bonus shall be paid by a railway, directly or indirectly ; nor any act be done which shall mislead the public as to the real rates charged or received for freight RAILROADS. 107 and passage : Ga. C 4,2,5. By tlie Califoraia Constitution, a railroad, having once lowered its rates to compete witli another carrier, cannot put them up again without the consent of the railroad commissioners : CaL C. 12,20. § 464. Free Passes. By the Constitutions of five states, no railroad or transporta- tion company can furnish passes or tickets, or tickets at a discount, (1) to members of the legislature or state or municipal otficers : Mo. C. 12,24 ; Ark. C. 17,7 ; Cal. C. 12,19 ; Ala. C. 14,23. (2) To any person except officers or employees of the company : Pa. C. 17,8. And acceptance of such a pass forfeits such office : Mo., Cal. § 465. Discrimination" Two Constitutions provide that no discrimination in charges or facilities for transportation shall be made by any railroad or other transportation company, between places or persons, or in the facilities for the transportation of the same classes of freight or passengers : Pa. C. 17,3; Cal. C. 12,21. And five prohibit discrimination in charges or facilities in transportation betv;een transportation companies and individuals, or in favor of either, by abate- ment, drawback, or otherwise; and no railroad shall make any preference in furnishing cars or motive-power : Pa.* C. 17,-7 ; Mo. C. 12,23 ; Ark.<^C. 17,6 ; Col. C. 15,6. And in one, all corporations, being common carriers enjoying a right of way, shall carry the productions of the country on equal terms : Minn. C. 10,4. And in three others, no undue or unreasonable discrimination shall be made in charges or facilities for transportation of freight or passengers within the state, or coming from or going to any other state : Ark. C. 17,3; Cal. ; Col. Notes. — " See also § 462. '' So, of canals also. <" So of canal and turnpike companies. § 466. Connecting Companies. Every railroad has, in some states, a constitu- tional right to connect with, or cross, any other : Pa," C. 16,12 ; 17,1 ; Mo. C. 12,13 ; Ark. C. 17,1 ; Tex. C. 10,1 ; Cal. C. 12,17 ; Col." C. 15,4 ; 15,13 ; Ala."-* C. 14,11; 14,21; La. C. 243. Every railroad must, in several, receive and transport the passengei'S and freight or cars of any otlier company without delay or discrimination : Pa., Mo., Ark., Tex., Cal., Ala., La. So, in Illinois, they must deliver grain at any elevator or warehouse which can be reached by their tracks; and allow other warehouses or coal-banks to make connection with their tracks : 111. C. 13,5. So, the legislature are to prohibit discrimination in contracts between railroads against other roads connecting or intersecting : Mich. C. 19 A, 1. And in California, no railroad or other common carrier can combine or make any contract with the owners of any vessel that leaves port or makes port in the state, or with any common carrier, by which contract the earnings of the one doing the carrying shall be shared by the other not doing it : Cal. C. 12,20. Notes. — " § 467, note «. * § 467, note ^ § 467. Consolidation. By the Constitutions of many states, no railroad can consolidate with a parallel or competing line : Pa."'* C. 16,12 ; 17,4 ; 111. C. 11,11 ; Mich. C. 19 A,2 ; Neb.« C. 11,3; W.Va. C. 11,11 ; Mo. C. 12,17 ; Ark.* C. 17,4; Tex. C. 10,5; Col. C. 15,5; 15,13." So, in one, of telegrr.ph companies only: Ala. C. 14,11. Nor, in several, can such railway lease or purchase such line: Pa.,"' * W.Va., Mo., Ark., Tex. Nor, in four, can any oflicer of the one act as officer of the other : Pa.,"- * Mo., Ark., Tex. Nor, in Texas, can a railroad in the state consolidate with any road organized in another state : Tex. C. 10,6. In others, it may so consolidate ; but will still be liable to the home jurisdiction : Mo. C. 12,18; Col.« C. 15,14 ; La. C. 24G. 108 LEGISLATION: CONTENT. Notice of a proposed consolidation must be given to all the stockholders of both roads: 111., Mich., Neb., Mo., La. The question whether roads are parallel or competing lines is, in three states, declared to be one for the jury : Pa., Mo., Ark. Notes. — " So, in these states, of telegraph companies. ^ So, of canal companies. § 468. The Rolling Stock and movable property of railroads are, by the Con- stitutions of a few states, declared to be personal property ; and the legislature may pass no law exempting such from execution : 111. C. 11,10 ; Neb. C. 11,2 ; W.Va. C. 11,8 ; Mo. U. 2,16 ; Ark. C. 17,11 ; Tex. C. 10,4 § 469. Location. By the Constitution of Nebraska, no railroad organized in another state can exercise the right of eminent domain or acquire real estate or a right of way in the State until duly incorporated therein : Neb. C 11,8. In West Virginia, no railway may run within half a mile of a town of three hundred inhab- itants without establishing a station for it : W.Va. C. 11,10. So, iu Texas, no railroad can pass within three miles of a county seat without passing through the same and maintaining a depot therein, if the town will give right of way and land therefor, unless prevented by natural obstacles : Tex. C. 10,9. § 470. Officers. The Constitution of Illinois provides that a majority of directors must be citizens and residents of the state : 111. C. 11,11. And in four, that no president, director, officer, agent, or employee of a railroad or canal shall be interested, directly or indirectly, in the furnishing of material or sup- plies to such company, or in the business of transportation of freight or passengers as a common carrier over the company's works : Pa. C. 17,6 ; Mo. C. 12,22 ; Ark. C. 17,5 ; Cab C. 12,18. § 471. Ultra Vires. In one, no company doing the business of a common carrier can engage in mining or manufacturing articles for transportation over its works; nor directly or indirectly engage in any other business ; nor hold land except such as is necessary to its busi- ness ; but mining or manufacturing companies may carry their products over their own rail- ways or canals not exceeding fifty miles in length : Pa. C. 17,5. § 472. Railroad Commissioners. By the Constitutions of two states, a board of railroad commissioners is established: Neb. (see § 202); Cal. C. 12,22. In Pennsylvania, the secretary of internal affairs has similar duties : Pa. C. 17,11. (For statutes, see in Part III.) § 473. Reports. The Constitutions of two states provide that every railroad in whole or in part in the State shall make an annual report to the auditor: W.Va. C. 11,7 ; Ark. C. 17,13. § 474. Liabilities of Railroads. The Constitution of Arkansas provides that all rail- roads shall be respo.isible for all damages to person or property, under such regulations as are prescribed by the legislature: Ark. C. 17,12. And that the legislature shall require, by suitable laws, the necessary means and appliances to secure the saf(!ty of passengers on railroads and otlmr public conveyances : Ark. C. 19,18. And in one, it is unlawful for any person or corporation to require of its employees, as a condition of their employment or otherwise, any contract or agreement whereby the company is released from liability on account of personal injuries received by such employees wliile in its service, by re;>son of the negligence of the company or its servants ; and such contracts are void : C(d. C 15,15. § 475. Damages for Death. The Constitution of Texas provides that every pers(m or corporation that may commit a homicide, through wilful act or omission or gross neglect, hall be responsible in exemplary damages to the surviving husband, widow, or heirs, notwithstand- ing any criminal proceedings that may or may not be had : Tex. C. 16,26. And in two, that no act of the legislature shall limit the amount to be recovered for in- juries resulting in death, or for injuries to person or property ; and in case of death resulting BANKS. • 109 tht'i-cfrom, the right of action shall survive for the benefit of such persons as the legislature may j)rescribe : Pa. C. 3,2J ; Ark. C. 5,32. And also, that no act shall prescribe any limita- tion of time within which such suits shall be brouglit against corporations, different from those fixed by general laws for actions against natural persons : Pa. § 476. Street-Railways. The Constitution of New York provides that no law shall be passed authorizing the construction of a street-railroad in a town or city without the consent (1) of one half in value of the abutting property owners : KY." C. 3,18. And (2) in many, not without the consent of the local authori- ties : Pa. C. 17,9 ; 111. C. 11,4 ; W.Va. C. 11,5 ; Mo. C. 12,20 ; Tex. C. 10,7 ; Col. C. 15,11 ; Ga. C. 3,7,20 ; Ala. G. 14,24 ; or (3) of the electors : Neb. C. 13,2. Note. — « Except by process in the Supreme Coui't. Art. 48. Banks. § 480. State Banks Forbidden. The Constitutions of a few states forbid the creation or renewal of corporations with banking or discounting privileo-es : Wis. C. 11,4; Tex. C. 16,16 ; Ore. C. 11,1 ; Miss. C. 12,12. So, in Washington Territory, the United States laws forbid banks: U.S. R. S. 1924. And in several, any act establish- ing banks must first be approved by a majority of the people, at a general election : 0. C. 13,7 ; in. C. 11,5 ; Mich. C. 15,2 ; Wis. C. 11,5 ; lo. C. 8,5 ; Kan. C. 13,8 ; Mo. 0. 12,26. State banks are forbidden in Illinois ; and, in other states, the state may not hold stock in any bank : Ind. ; 111. ; Kan. C. 13,5 ; Tenn. ; Mo. C. 12,25 ; Ala. C. 14,20. See also § 326. Any banking law may be amended or repealed : Kan. C. 13,9. But in others, such corporations may be formed under general laws : W.Va. C. 11,6 ; Cal. C. 12,5; Ala. C. 14,14-15. And such banking law must receive a two-thirds vote of the legislature : Miiui. C. 9,13. So, in a few, no special charter can be granted for banking purposes: N.Y. C. 8,4; Ind. C. 11,2; Kan. C. 13,1. See also § 395 and § 441 (12). § 481. Money and Banknotes. In several, no corporation or individual can cir- culate as money anything but the lawful money of the United States : Ark. C. 12,10 ; Cal. ; Ore. ; Nev. C. 8,6 ; Wash. U.S. R. S. 1924. So, all banknotes must be redeemable (1) in the lawful money of the United States: Kan. C. 13,4 ; (2) in gold and silver : Ala. C. 14,16. No note can be issued of less than $1 : Kan. C. 13,7. § 482. Specie Payments. In several, the legislature can pass no law sanc- tioning the suspension of specie payments by banks : N.Y. G. 8,5 ; Ind. C. 11,7 ; 111. g' 11,7; Mich. G. 15,6; lo. G 8,11 ; Minn. G. 9,13; Ala. G. 14,16. § 483. Security of Notes. In many, the legislature are to provide by law for the registry of all bills or notes issued as money, and shall require ample security for their redemption in specie: N.Y. G 8,6; Pa. G 16,9; Ind, C. 11,3; 111. G 11,8 ; Mich. G 15,4; lo. G. 8,8; Minn. G 9,13 ; Kan. G 13,2. § 484. Insolvency of Banks. The Constitution makes it a crime for any officer or owner of a private or public bank to assent to the reception of deposits or the creation of debts by such bank after he has knowledge that it is in insolvent or failing circumstances, and he is individually responsible for such debts or deposits : Mo. C. 12,27; La. C. 241. The bill-holders have preference over all other creditors of an insolvent bank : NY. C. 8,8 ; Ind. G 11,8 ; Mich. G 15,5 ; lo. G. 8,10; Minn. G 9,13 ; Kan. C. 13,4 ; Ala. C. 14,17. 110 LEGISLATION : CONTENT. § 485. Stockholders of a bank are, in a few states, individually liable for its debts, over and above their stock, to the amount of the stock held by theui : N.Y. C. 8,7 ; Ind. C. 11,6 ; III C. 11,6 ; lo. C. 8,9 ; Neb. C. 13,7 ; W.Va. C. 11,6. In one, to double such amount of stock : Minn. C. 9,13. And in one, they are liable for all debts of the bank contracted while they are ofl&cers or such stockholders, each for his proportion, according to the amount of stock owned by him : Mich. C. 15,3. And in two, they are liable only to the amount of their stock : Md. C. 3,39 ; S.C. C. 12,6. § 486. Interest. The Constitutions of two states provide that no bank shall receive, directly or indirectly, a greater rate of interest than is allowed to individuals loaning money : Ind. C. 11,9 ; Ala. C. 14,19. § 487. Limitation of Charter. By the Constitutions of two, every bank shall be required to cease all banking operations within twenty years from the time of its organization, and promptly thereafter to close its business: Ind. C. 11,10; Ala. C. 14,18. § 488. Directors. By the Constitution of one, it is a penal offence for oflficers or directors of a bauk to borrow money from it : S.C. C. 12,6. Art. 49. Miscellaneous Corporations. § 490. Religious. In one state, no religious corporation can be established in the state except such as may be formed under a general law for the purpose of holding title to such real estate as may be allowed them by law : Mo. C. 2,8. In one other, the title to all property of rehgions corporations vests in trustees, elected by their members : Kan. C. 12,3. In two, the legislature shall not grant a charter of incorporation to any church or religious denomination, but may secure the title to church property to an extent to be limited by law : Va. C. 5,17; W.Va. C. 6,47. § 491. Insurance Companies. The Georgia Constitution provides that all foreign life- insurance companies doing buir^iness in the state shall deposit §100,000 in good securities with the comptroller of the insurance commissioners of this state or the state whore they are char- tered : Ga. C. 3,12,1. So of companies in the state: Ga. C 3,12,3. All companies must make semi-anuual reports : Ga. C. 3,12,5. Art. 50. Municipal Corporations." § 500. Local Government. It is in many states provided that the legislature shall provide by general law for the organization of cities, towns, and municipali- ties, their powers and duties : 0. C. 13,6 ; 111. C. 10,5 ; Mich. C. 15,13 ; Wis. C. 11,3 ; Kan. C. 12,5 ; Neb. C. 10,4-5 ; Va. C. 6,20 ; N.C. C. 8,4; Mo. C. 9,7 ; Ark. C. 12,3 ; Cal. C. 11,6 ; Nev. C. 8,8. The same would follow in other states from § 395 and § 441. And so, in several, that the legislature shall create a uniform system of county, town, and municipal government : Wis. C. 4,23 ; Mo. ; Cal. C. 11,4 ; Nev. C. 4,25 ; Ga. C. 11,3,1 ; Fla. C. 4,21. So, in others, the legislature may confer upon organized townships, incorporated cities and villages, and upon the board of supervisors of the several counties, such powers of a local, legislative, and administrative character as they deem proper : Mich. C. 4,38 ; Wis. C. 4,22; Kan. C. 2,21. * INTOXICATING LIQUORS. Ill In a few, the Constitution provides that any county may by vote adopt the town- ship form of government : HI. ; Neb. C. 10,5 ; Mo. C. y,8 ; Cal. Counties are, in several, to be governed by a board of county commissioners : Pa. C. 14,7 ; Ind. C. 6,10 ; 111. C. 10,6 ; Nev. C. 4,26 ; S.C. C. 4,19 ; called, in one, the " board of supervisors : " Mich. C. 10,6. lu Virgiuia, each county is divided iuto three or more magisterial districts; and in each dis- trict is elected one supervisor, one constable, one overseer of tlie poor, and three justices of the peace: Va. C. 7,2. And each magisterial district is divided iuto as many school districts as may he necessary : Va. C. 7,3. Townships are, in one, governed by a board of trustees, consisting of a clerk and two justices of the peace, elected by the voters thereof: N.C. C. 7,5. In a few, the Constitution provides that tlie legislature may charter cities in towns having (1) more than 12,000 inhabitants: Mass. C. Amt. 2; (2) more than 10,000: Pa. C. 15,1; Tex. C. 11,4; (3) 20,000: Minn. C. 11,2 (i.e., it may be made into a county by itself). In two, any city having a population of more than 100,000 may frame a charter for itself (by a special process, subject to certain restrictions) : Mo. C. 0,16; Cal. C. 11,8. Note. — « For provisions bearing on nmniciijal linance, see Arts. 34 and 37. § 501. Municipalities. The Constitutions of two states provide that each organ- ized county shall be a body corporate, with such powers and immunities as shall be established by law : Mich. C. 10,1 ; Ga. C. 11,1,1. So, each organized township : Mich. C. 11,2 ; N.C. C. 7,4. All suits and proceedings by or against a county or township shall be in the name thereof : Mich., Ga. Any county, city, town, or towmship may make and enforce within its limits all local police, sanitary, and other regulations not in conflict with general laws : Cal. C. 11,11. In one, no municipal corporation can be authorized by the legislature to pass laws incon- sistent with the general laws of the state : Ala. C. 4,50. § 502. OfEcers. The following persons are, by the Constitution, declared ineligible to hold mimicipal offices : in one state, persons in default as collectors or custodians of money or property of such municipality : 111. C. 9,11. In cities or counties having more than 200,000 inhabitants, no person can at the same time have a state office and a municipal office, or two municipal offices together in any municipality : Mo. C. 9,18. The fees or salaries of municipal officers cannot, in two states, he increased or diminished during their terms: 111. ; Cal. C. 11,9. They must, in two, reside in their respective counties or towns: Ky. C. 8,11 ; Ore. C. 6,8. In one, they must have so resided one year: CoL C. 14,10. In one, they must he qualified electors: Col. § 503. Citizens' Rights. By the Constitution of Arkansas, any citizen of any county, city, or town may institute suits in behalf of himself and all others inter- ested to resist an illegal exaction : Ark. C. 16,13. Art. 51„ Intoxicating Liquors. § 510. Regulation of Sale. Several states have constitutional provisions con- cerning intoxicating liquors. In Louisiana, there is a general declnration that the regulation of the sale of such liquors behnigs to the police jurisdiction, and the State may enact laws regulating their sale and use: La. C. 170. So, in West Virginia, that the legislature may pass laws regulating or prohibiting such sale : W.Va. C. 6,46. In three states, the manufacture and sale of intoxicating liquors is forever prohibited in the state, except for medical, scientific, and mechanical purposes: Me. C. Amt. 1885, p. 339 (except cider) ; lo. C Amt. 1882, p. 178 ; Kan. C. Amt. 1880 (1881, p. S^p). But in Colorado, only the importation or sale of spurious or drugged liquors is forbid- den : Col. C. 18,5. 112 LEGISLATION: CONTENT. § 511. Local Option. The Texas Constitution provides that the legislature shall enact a law whereby the qualified electors of any city, county, town, or precinct may, by a majority vote, prohibit the sale of liquors within the prescribed limits : Tex. C. 16,20. Art. 52. Labor. § 520. Day's Work. The Constitution of one state declares eight hours a legal day's work on all public work : Cal. C. 20,17. § 521. Wages. The Louisiana Constitution provides that no law shall be passed fixing the price of manual labor : La. C. 49. § 522. Lien. The Constitutions of three states provide that mechanics, artisans, and material men of every class shall have a lien (1) upon the building and articles repaired by them for the value of their labor or material : N.C. C. 14,4 ; Tex. C. 16,37 ; Cal. C. 20,15. And (2) in two, also, upon personal property, for labor done upon it : N.C, Cal. So, in two others, that the legislature shall pass laws to protect laborers on public works, railroads, and canals against failure of the contractors to pay their current wages when due, and to make the corporation or individual for whose benefit the work is done responsible for their ultimate payment : Tex. C. 16,35 ; La. C. 175, § 523. Mines. The Constitutions of three states provide that the legislature shall pass laws for the protection of miners (as by ventilation, escapement shafts, etc.): 111. C. 4,29; Ark. C. 19,18; Col. C. 16,2. So, in one, for tlie drainage of mines : Col. C. 16,3. And in one, childron under twelve may not be employed iu mines : Col. § 524. Vagrants. The Constitution of Texas provides that the legislature shall enact eflFective vagrant laws : Tex. C. 3,46. § 525. Paupers and Charity. By the Constitutions of many states, the sev- eral counties shall provide poor-houses for the aged, intirm, and unfortunate : Kan. C. 7,4 ; Tex. C. 11,2 ; 16,8 ; Nev. C. 13,3; S.C. C. 11,5 ; Ala. C. 4,49; Miss. C. 12,29; Fla. C. 10,3; La. C. 163. So, in one other, provision is made for orphan asylums : N.C. C. 11,8. In two, for idiot and inebriate schools: N.C. C. 11,9; Tex. C. 16,42. In many, for indigent deaf mutes, blind and insane persons : N.C. C. 11,10; Ark. C. 19,19 ; Nev. C. 13,1 ; Col. C. 8,1 ; S.C. C. 10,7 ; 11,1 ; Miss. C. 12,27 ; Fla. C. 10,1. In one, for the support of indigent lunatics : Tex. C. 16,54. In one, there is a board of public charities: N.C. C. 11,7. THE COURTS. 113 CHAPTER V. THE SYSTEM OF JUDICATURE. Art. 55. The Courts. § 550. Note. In discussing the various systems of courts, it is impossible to keep entirely separate the constitutional provisions and the provisions of the statutes. In this article, therefore, many statutory provisions of those states which have no constitutional provisions are incorporated, an asterisk being always used to note the fact ; and thus an approximately complete view of the judicial systems of all the states and territories is presented. The chart appended (§ 551) is in- tended to give a general idea of the several courts of corresponding jurisdiction in all the states and territories, the horizontal lines indicating divisions of juris- diction. Generally, throughout this work, the generic terms supreme, superior, equity, probate, municipal, magistrates, and special, are used as referring to classes A, B, C, D, E, r, and G, of the chart respectively. When a particular court of a state is referred to as such, and its name in such state, instead of the above generic name, is used, this is indicated by writing such local name of the court with capitals. § 551. Citations to the Chart. KH. C. 1,35 ; Stats. Chapters 189,208,214,215 ; Mass. Chaps. 150,151,152,154,155,156,157 ; Me. C. 6,1-8 ; Stats. Chaps. 63,66,77, 132 ; Vt. C. 2,4-5 ; Stats. 695,778,796,821,1774,2015 ; R.I. C. 10,1-2 ; Stats. 179, 1-2 ; 192,1 ; 193,1 ; 195,1 ; 196,1 ; Ct. C. 5,1-2 ; Stats. 4,2,1 ; 4,5,1 ; KY. C. 6, §§ 2,6,12,15,18; Civ. C. § 2; C. Cr. P. §§ 22,37,74; N.J. C. 6, §§ 1,2,4,5,6,7; Stats. Courts, 1,17,28,51,59 ; Chancery, 1 ; District Cts. 1 (App.) ; Justices Cts. 1 ; Orph. Cts. 1 ; Crim. Proc. 23,26 ; 1883,137 ; Pa. C. 5, §§ 1,4,6,8,11,12,20,22 ; Supr. Ct. 1 ; Com. Fleas, 1 ; Orph. Ct. 1 ; Ann. Dig. 1874, 2 ; Distr. Cts. ; Quart. Scss. 1 and 21; Justices, etc. 30; 0. C. 4,1 ; Stats. 410,447,456,523,482,504,582,1785, 1816,1831 ; 1883, p. 382 ; 1884, p. 168 ; 1885, p. 16 ; Ind. C. 7,1 ; Stats. 1292, 1312,1342,1306,1488,3209; 111. C. 6, §§1,11,20,21,23; Stats. Chap. 37, §§ 3, 18,216,240; Chap. 79, § 13; Mich. C. 6,1 ; Stats. 6382,6535-6592,6755,6814; Wis. C. 7,2; Stats. 2440,2443,2484-2523; lo. C. 5,1; Stats. 161-2; Minn. C. 6,1 ; Stats. 49,1 ; 64,1 ; Kan. C. 3,1 ; Stats. 18,49 ; 1881,37,51 ; Neb. C. 6,1 ; Md. C. 4,1 ; Del. C. 6,1 ; Va. C. 6,1 and 14 ; Stats. 156,1 ; 155,1 ; 154,1-2 and 20 ; 48,2 ; W.Va. C. 8,1 and 22 ; N.C. C. 4,2 and 14 ; Stats. 102,802,910,3818 ; Ky. C. 4, §§ 1,16,29 ; Stats. 28,13,1 ; 28,18,1 ; 1882,1324,1 ; Tenn. C. 6,1 ; Stats. 4869 ; Mo. C. 6,1; Ark. C. 7,1; Stats. 814; Tex. C. 5,1; Cal. C. 6,1; Stats. 10033,10121, 10085,10103,4426 ; Ore. C. 7,1 ; Nev. C. 6,1 ; Stats. 910 ; Col. C. 6,1 ; Stats. 3206 ; Territories, U.S. R. S. 1864,1865 ; S.C. C. 4,1 and 16 ; Civ. C. 9 and 34 ; Ga. C. 6,1,1 ; Stats. 279,480 ; Ala. C. 6,1 ; Stats. 539,718 ; Miss. C. 6, §§ 1,11,16,23; ria. C. 6,1 and 16 ; La. C. 80,137 ; D. 2026,2119 ; Wash.* 2113-4,1297,1089 ; Dak.* C. Cr. P. 15 ; C. Civ. P. 18 ; Ida.* Civ. C. 17,30 ; 1885, p. 95 ; Mon.* Civ. C. 676,686,714 ; Wy.* 106,1 ; Uta.* C. Civ. P. 44,35,17 ; C. L. 160 ; N.M.* 515,531, 561 ; Ariz.* 185 and 2337 ; U.S. R. S. 1907,1908. 8 . CO in . «^ « m B. See § 554. C See § 555, D. See § 556. E. See § 558. F. See § 559. m m <'A O « 5^ "A a a a « & 3 5 o General Sessions Del. S.C. All Courts (i.e., Law and Equity are fused). N.Y. N.C. Cal. a > < -s % ^ a Oh 'A M ^ « o Mayor's Court. O.* N.C* S.C* Recorders' Courts. N.Y.* Pa.* Teun.* Mass.* NY. in. Kan. Va * Tenn.* Nev* Miss Me. Pa. Mich. Neb. W Va. Mo. Col.* La.* R.L O. Wis. Md. NC. Ark. S.fl * Ariz.* Ct. Ind.* Minn. Del * Ky. Cal. Ga* Quarter Sessions. Pa. Quarter Sessions. NY.* N.J.* Ky.» ^ =.■ O ai a . a * a M |3 Court of Appellate Appeals. Courts. La. 111. Oyer and Terminer. N.J.* Pa. Del. a P to' O b Police Justices, N.J.* . 0.* o 2 * « o a • I ^ District AND Circuit. lo. Supreme, Superior, and Municipal, Etc. Minn. W.Va. Ky. Tenn. Court of Appeals. N.Y. Ky. "A a a 63 Cu S 73 o a a, VI «o H Gener.al Sessions. N.Y.* Common Pleas. Ark. to 'A O M 00 CO 75 >; 3 a 75 a H 75 District Criminal. Tex. Col. Oh Supreme (Civil) AND Court of Appeals (Crim.) Tex. Orphans. Pa Md. Del. to a g *.-• CO C3 ® Magistrates. Pa, HI Neb, Col. City Courts. Ct. N.J.* Ind.* HI. lo.* Va.* 6 H id o * Oyer and Terminer. N.Y.* in < aO o a a o Supreme and Superior, Etc. N.H. Ind. Md. Nev, IMass. in. Va. Col. Me. Wis. Mo. S.C. Ct. lo. Ark. Ga. Pa. Kan. Tex. Fla. O. Neb. Ore. Territories. Court of Errors and Appeals. Del. ^** Superior, Circuit, OR District. Ind. lo N.C* Cal. Nev. La. Circuit Criminal. Mo. Col. Trial Justices. Mass.* Me* R.I* S.C* Corporation. Va.* W.Va. Tenn, Mo. Ark. Ga.* Court of Appeals. Md. Va. W.Va. County. Vt.* Supreme Court of Errors. Ct. Common Pleas. R.L* County. IH. Tenn.* Wis. Tex. Neb.* Ore. Va. Col. W.Va. Fla. Ky. Police. N.H. Neb Mass.* Ark * Me.* Cal* Ct. Ga.* N.Y.* La O.* Ariz.* 111. D.C* Kan * Justice of the Peace. N.H. Wis. N.C. Col. Ida.* Vt.* lo. Ky.* S C Mon * Ct. Minn, Teun,* Ga. Wy.* NY, Kan, Mo. Ala* Uta.* N.J. Neb. Ark. Miss. N.M * O. Md. Tex. Fla. Ariz * Ind.* Del. Cal. La. D.C* 111 Va * Ore. Wash.* Mich. W.Va. Nev. Dak.* Supreme Court on Circuit. N.H. Mu.* Supreme Judicial. Mass.* District. Minn. Ida.* Kan. Mon.* Neb. Wv.* Nev. Uta.* La. N.M.* W'ash.* Ariz.* Dak.* d H - M a '-! 0.1 b VI o Municipal. Mass.* Me.* Mich. Ore. Nev. Col. S.C Fla. Supreme. N.H. Mich. Tenn. S.C Ida.* Me. Wis. Mo. Ga. Mon.* Vt. lo. Ark. Ala. Wy.* K.I. JNIinn. Cal. Miss. Uta.* Pa. Kan. Ore. Fla. N.M.* O. Neb. Nev. Wash.* Ariz.* Ind. N.C Col. Dak.* D.C* Probate. N.H. Mich. Dak.* Mass.* Minn. Ida* Me. Kau. Mon.* Vt. Mo. Wy * R.I.* Ark. Uta* Ct.* S.C. NM.* O. Ala. Ariz.* Ill* Wash.* Circuit. Ind. Ky. 111. Tenn * Mich. Ark.* Wis. Ore. Md. Ala. Va Miss. W.Va. Fla. County. N.Y.* Ky. Col. 111. Tenn.* Ga.* Wis.* Mo Ala.* Nob Ark. Fla. Va. Tex. W.Va. Ore. Chancery. Vt. Tenn.* N.J. Ala. :Mich.* Miss. Del. Superior. Mass.* Ct. N.C. Cal. Ga. ■HXVnadcIV ONv qv.vr;)nio xsaiioiH "NoixDiasraar '^iv.viniao AO 8X>i.ior) iioiii •SMOo:) AxmM •aivaoHd •T^raioiNQW am 'AlNnOO 'HONIK ■pfTIVIIXSlOVK QNV aOV3d aHX ao gaoixsflf •avooi aNV avioads 'stnajdng ■V •jouadns a •.^:;inba •a^Bqojji •a 'XBdioranm •J •XBioadg THE COURTS. 115 § 552. Jurisdiction : General Principles. In one state there are no constitu- tional provisions erecting courts ; but the whole subject is lelt to the legislature : N.H. C. 2,4 § 55a Jurisdiction, Special Provisions : The Supreme Court. The courts of appeals" have in two states appellate jurisdiction, civil and criminal, (1) from the Supreme Court : N.Y. C. 6,6 ; N.J.* Errors, 3 ; so, from the superior courts generally : Del.* 113,5 ; (2) from the Circuit Court : N.J. Errors, 5 ; Courts, 12 ; C. 6,5,3; (.3) from the Chancery Court or chancellor : N.J.* Chancery, 114; 1878, 208; (4) from the Prerogative Court : KJ.* Courts, 58; (5) from the Superior City Courts : N.Y.* Civ. C. 190. The United States Supreme Court has appellate jurisdiction from the supreme courts of the territories and of the District of Columbia : D.C.* 846 ; U.S. 1879, 99, § 4 ; U.S. E. S. 1909,1911. lu several states, the Constitution or laws provide that the governor and either branch of the legislature may require the opinion of the supreme court on questions of law in important or solemn occasions: N.H. C. 2,74; Mass. C. 2,3,2; Me. C. 6,3; Vt.** 795 ; R.I. C. 10,3; Fla.'' C. 5,16. (a) In a few states, the Supreme Court has original jurisdiction of all cases : * N.H.* 208,3; 252,1; Mass.*'' 150,5; Me.* 77,2 ; K.I.* 192,7 and 26 and 29; N.Y.'^ C. 6,6 ; Civ. C. 217 ; N.J. C. 6,5,2 ; Pa.* ^ Supr. Ct. 17-18 ; D.C.* ' 760-769. And, specially, it has, in some, jurisdiction of divorce, etc. : N.H. C. 2,76 ; Mass.*; R.I.* ; D.C.* See, for other states, in Part II., Division II. It has, in a few states, original equity jurisdiction : N.H.* 209,1 ; Mass.* 151,4 ; Me.* 77,6 ; R.I.* 192,8 ; N.Y. C. 14,5 ; Civ. C. 217 ; Pa.* Equity, 1-2 and 11. But in most states, it has no original jurisdiction : * Ct.* 4,4,2 ; 0. ; Ind. ; 111. ; Mich.* 6404; Wis.* 2405 ; lo. C. 5,4; Minn.* 63,1 ; Kan. C. 3,3; Neb. C. 6,2 ; Md.* 56,7 ; DeL ; Ya. C. 6,2 ; W.Ya. C. 8,3 ; Ky.^ C. 4,2 ; Tenn. C. 6,2 ; Stats. 344,5246 ; Mo. C. 6,2 ; Ark. C. 7,4 ; Tex. C. 5,3 ; Cal. C. 6,4 ; Ore. C. 7,6 ; Nev. C. 6,4 ; Col. C. 6,2 ; S.C. C. 4,4 ; Ga. C. 6,2,5 ; Ala. C. 6,2 ; Miss. C. 6,4 ; Fla. C. 6,5 ; La. C. 81. In one, the Constitution provides that no decision of the Supreme Court of Appeals shall be binding on inferior courts unless concurred in by at least three judges : W.Ya. C. 8,4. And of course, in other states, there must be a full court. (C) The supreme courts have generally power to issue (1) injunctions : " Ind.* 1147 ; Mich. C. 6,3 ; Wis. C. 7,3; Cob C. 6,3 ; S.C. C. 4,4; Ala. C, 6,2 ; Miss.* 1404. So, only, where a corporation is a party defendant : Pa. C. 5,3 ; Minn. So, (2) writs of quo warranto: N.H.* 208,1 ; Mass.* 150,3 ; Me.* 77,5 ; Yt.* 782 ; R I.* 192,7 ; Pa. ; 0. C. 4,2 ; Mich. ; Wis. ; Minn. ; Kan. ; Neb. ; Mo. C. 6,3; Ark. C. 7,4 ; Nev. C. 6,4 ; Col. ; S.C. ; Ala. ; Fla. C. 6,5 ; La. C. 90 ; Ariz.* 2341. So (3) of suits against the State or cases in which the State is a party :'' Me.* 77,2 ; R.I.* ; Wis.* 3200; Neb.; N.C. C. 4,9. So (4) of revenue cases : 111. C. 6,2 ; Neb. So (5) writs o( habeas corpus: N.H. Me.* 99,4 ; R.I.* ; Pa.* Supr. Ct. 23 ; O. ; 111.* 37,8 ; Mich.; Wis. ; Kan. ; Neb. ; Ya, C. 6,2 ; W. Va. C. 8,3 ; Mo. ; Ark. ; Tex.*^ 1069 ; Cal. C. 6,4 ; Nev. ; Col. ; S.C. ; Ala, Miss.*; Fla. ; La. C. 89 ; Ida.* Civ. C. 19-20 ; Uta.* Civ. C. 19-20. (6) Of manda mus:^ N.H.; Mass.; Me.* 102,16; 77,5 ; Vt.* ; R.I.* ; Pa.; 0.; 111.; Mich.; Wis. Minn.*; Kan.; Neb.; Ya. ; W.Va. ; Mo.; Ark.; Tex. C. 5,3; Cab; Nev.; CoL S.C; Ala.*; Fla.; La.; Ida.*; Uta.*; Ariz.* (7) Of prohibition: N.H. ; Mass. Me.* ; Vt.* ; R.I.* ; Mich.* ; Wis.* 2406 ; Llinn.* ; Ya. ; W.Va. ; Ark. ; Cal. ; Nev. Fla.; La. ; Ida.*; Uta.* (8) Of certiorari: N.H.; ^lass. ; Me.* 102,13; Yt.*; R.L* Pa.*; Ill*; Mich.*; Wis.*; Minn.*; Mo.; Ark.; Cab; Nov.; Cob; Ala.* 572 Miss.*; Fla. ; La.; Uta.*; Ariz.* (9) Oi p)^'<^cedendo : Mich., AVis.,* Kan. (10) Of writs 116 THE SYSTEM OF JUDICATURE. of error : KH. ; Mass.* ; Me.* 102,1 ; Vt.* ; R.I. ; Pa.* ; 111.* ; Mich. ; Minn.* ; Va.* 156,4 ; Ark. (1 1) Of supersedeas : 0* 442 ; 111.* ; Mich.* ; Wis.* ; Va.* ; Ark. ; Ala.* ; Miss.* (12) Other original remedial writs : Pa.* ; N.C.* 945 ; Mo. ; Ark. ; Col. ; S.C. ; Ala.; Miss.*; La. C. 90; Ida.* (13) "All other writs and processes necessary to the furtherance of justice and the regular execution of the laws : " Mass.* 150,3 ; Me.* 77,5; Vt.*; R.I.*; 0.*; 111.*; Mich.*; Wis.*; Minn.*; Cal.* ; Nev.*; Fla.* ; Ida.*; Uta.* ; Ariz.* (14) It may, in others, issue all writs and process necessary for the exercise and enforcement of its jurisdiction : Tenn.*; Tex. ; Cal. ; Ga.* 218 ; Fla. So in many states, see in Part IV. In nearly all states, the supreme courts have appellate jurisdiction in civil law, criminal law, and equity : Mass.* 150,3 ; 1883,223,6 ; Vt.* 771,782,1699 ; Ct.* 4,4,2 ; N.Y. C. 6,15 ; Crim. C. 517 ; Pa. C. 5,3 ; O. C. 4,2 ; Ind. C. 7,4 ; Stats. 1292 ; 111. C. 6,2 ; Mich. C. 6,3 ; Stats. 6404 ; Wis. C. 7,3 ; Stats. 2405 ; lo. C. 5,4 ; Minn. C. 6,2 ; Kan. C. 3,3 ; Stats. 27,1 ; Neb. C. 6,2 ; Stats. 1,19,13 ; Md. C. 4,18 ; Stats. 71,2, and 37 and 39 ; Del. C. 6,7 and 12 ; Va. C. 6,2 ; Stats. 156,3 ; W.Va. C. 8,3 ; Stats. 1882,156 ; N.C. C. 4,8 ; Stats. 945 ; Ky.'^ C. 4,2 ; Stats. 28,22,1 ; Tenn. C. 6,2 ; Stats. 5296 ; Mo. C. 6,2 ; Ark. C. 6,4 ; Cal. C. 6,4 ; Ore. C. 7,6 ; Nev. C. 6,4 ; Col. C. 6,2 ; S.C. C. 4,4 ; Civ. C.ll ; Ga. C. 6,2,5 ; Stats. 218 ; Ala. C. 6,2; Miss.* 1405,2314; Fla. C. 6,5; Stats. 53,14; La. C. 81; Wa.sh.* 1140; Dak.* C. Civ. P. 22 ; C. Cr. P. 18 ; Ida.* Civ. C. 21 ; Mon.* Civ. C. 677 ; C. Cr. P. 393 ; Uta.* Civ. C. 19-2i ; Cr. C. 358 ; N.M.* 515 ; Ariz.* 862,2339-40. And also, in many, in probate or insolvency matters : N.H.* 208,2 ; Mass.* 156,5 ; Me.* 63,23; Yt.*2269; RL* 181,1; 192,25; Pa.* Orph. Ct. 50 ; Ecgister, 23; Mich.* 6405 ; Wis.* 2405 ; Md.* 71,5 and 70 ; W.Va. ; Tenn.* 3865 ; Mo. ; Ark. ; Tex.* 1068 ; S.C* Civ. C. 56 ; Ala.* 3916 ; Miss.* 2309 ; La. C. 91 ; Fla. The same would follow in all states where probate jurisdiction is given to the superior courts ; see Chart, and § 556. In Texas, the Supreme Court has appellate jurisdictioti only in civil matters; the Court of Appeals, in criminal, and in civil cases from the county court : Tex. C. 5,3 and 6; Stats. lOJl and 1068 ; C. Cr. P. QQ. In three, the supreme court has appellate jurisdiction from all inferior courts, but not (except the case of appeals from a single judge to the full bench) in equity, as it ia the only court having equity jurisdiction : N.H.* 208,1 ; 252,3; C. 2,76; Me.* 77,3; 131,1; R.I.* 192,8 and 29; 218,2. So, specially, the Supreme Court has general appellate jurisdiction from (1) the Circuit Court: N.J. C. 6,5,-3 ; (2) District Court: Cal.* 10963 ; La. C. 91 ; Territories, U.S. R. S. 1809 ; (3) from the Court of Common Picas : N. J.* Errors, 6 ; in the District of Columbia, from tlie Police Court: D.C.* 773 and 1073; and from justices of the peace: D.C.*774; and from the commissioner of patents: D.C.* 780; (4) from the Superior Court: N.C* 1234; (5) from county courts : Vt.* 782; 111.* 37,213; Wis.* 2405; Tenn.* 3895 ; (6) from the special courts: Mc* 77,79 ; Ind.* 1362; Ark.* 5419; (7) from the Court of Chancery: Vt.* 771; Tenn.* 3872; (8) from the Superior Court of Cincinnati: O. 6710; 1883, p. 169; (9) from all courts of record : Wis.,* Ky.* ; ^ (10) from municipal and police courts : N.H.* 215, 13; (11) from city courts : 111*37,257; (12) from justices of the peace: N.H.* 214,5; Mc* 83,18; 132,15 ; (13) from the Court of Quarter Sessions and of Oyer and Tenniner: Pa.* Supr. Cts. 25; (14) from the state laud commissioners: Md.* 71,87. And of course, in aU states, from the several superior courts. The District of Columbia Supreme Court has the same jurisdiction as the Circuit Court of the United States. Any one of the justices may hold a criminal court of general jurisdiction. It has also jurisdiction of copyricjht and patent matters, bankruptcy, divorce, and equity juris- diction : d!c.* 760-1,763-6, 768. In Kentucky, the Court of Appeals has appellate jurisdictiim from the Superior Court, and the Superior Court from the Circuit and other courts : Ky.* 1882.1324,2 and 5. The appellate jurisdiction of the Superior Court is only in cases of less importance ; felonies, real estate cases, THE COURTS. 117 ami cases over $3,000, etc., go directly to the Court of Appeals : Ky. * ih. 3. The Superior Court has original jurisdictiou of escheats : Ky.* ih. 22. Nisi Prius Courts. In Penusylvania, one Supreme Court judge holds a Nisi Prius Court in Philadelphia, for the trial of issues of fact; and has equity jurisdicTiou like the Supreme Court: Pa. Supr. Cts. 33-4,36-7,42 ; Equiti/, 9. Notes. — « The word is here used only of those Courts of Appeals which exist abov: a Supreme Court ; see Chart. * The governor, only. <= Except minor ciiniinal cases. '' Except civil cases in- volving less than §1,000, and criminal cases not capital. « Exeei)t the wilts below specilied. / Of the Court of Appeals. ^ See also in Part IV. * See also § 75. § 554. The Superior Courts [i.e., the Superior, Circuit, District, Supreme Court on circuit, etc. (see Chart)] have (A) original jurisdiction of all cases, civil or criminal, at law or equity, except of minor criminal cases and civil suits in- volving small sums: Mass.*" 152,4-9 ; 1883,223; Me.* 77,47; Ct.** 19,4,2-3; 4,3,2; 20,13,4; 4,1; Pa. C. 5,4 and 20; Uqicit?/* 1 and 8; 0.** 456; Q 4,6 ; 1883, p. 383,6 ; Ind.** 1314; 111. C. 6,12; Stats. 38,392;* Mich.* C. 6,8; Stats. 6466 ; Wis.* C. 7,8 ; Stats. 2420 ; lo. C. 5,6 ; Minn.* C. 6,5 ; Stats. 64,1-2 ; Kan.** 28,1 ; 31,308 ; Neb. C. 6,9 ; Stats. 19,24; Md. C. 4,20 ; Stats. 56,7 ; Del* 92,1-3 ; Va.* 155,2 ; 1875,60 ; W.Va. C. 8,12 ; Stats. 36,3 ; 1881,-3,3 ; N.C.* 922 ; Ky.** 28,4,1 ; Cr. C. 13 ; Tenn.* 4997-8 ; Mo.* C. 6,22 ; Stats. 1102 ; 1760 ; Ark. C. 7,15 and 11 ; Stats. 1356-7 ; 1956; Tex.* C. 5,8 ; Stats. 1117,1122; Cal. C. 6,5 ; Stats. 10075-6 ; Ore. ;* C. 7,9 ; Nev. C. 6,6 ; Stats. 925,933 ; Col. C. 6,11 ; Ga. C. 6,4,1 ; Stats. 246,3080; Fla. C. 6,8; Stats. 52,2; La. C. 109; Wash.* 2121 ; Dak.* C. Civ. P. 27-30 ; C. Cr. P. 17 ; Ida.* Civ. C. 26 ; Mon.* Civ. C. 679,680 ; Uta * Civ. C. 26 ; N.M.* '^ 531-2,666 ; Ariz.* *• ' 2348. Uxcej^t, of capital crimes : Mass.* (b) They have original jurisdiction of all civil cases (1) in law : Vt.* *• " 798 ; E.I.**'^ 193,-3-4 ; N.Y. Civ. C. 232,235 ; N.J. Courts, 60 ; Pa. C. 5,3-4; Ind. ; Ala. C. 6,5 ; Stats. 657 ; Miss. C. 6,14 ; Stats. 1493. (3) In equity : N.Y., Pa. Ind. 1881,24. And often, probate jurisdiction. See § 556. (4) They have jurisdiction of claims against the State:'' Mass.* 152,3 ; 195,1; Neb.* 2,1106; Va.* 44,1. (5) They have generally jurisdiction to grant divorces. See Part II., Division 11. (C) They have original jurisdiction of all criminal cases : Vt.* * 799 ; Pt.L* ; * Ala. ; Miss. (D) Specially, the Court of Common Pleas has jurisdiction of all civil causes: N.J.*; Pa.**^ Com. P. 1.34 and 138-9; 0.** 456; S.C." C. 4,1 and 15. The Territorial District Courts have jurisdiction like the Circuit and District Courts of the United States : U.S. K. S. 1910. In two, the judges of the Supreme Court upon circuit have jurisdiction similar to that of the Superior Courts in other states : N.H.* 211,1 ; Me.* 77,47. In several, the Courts of General or Quarter Sessions or Oyer and Terminer, etc., have criminal jurisdicti(m in all cases: N.Y. Civ. C. 232 ; Crim. C. 22 ; N.J.* Crim. Proc. 26 and 30 ; Pa.* Quart. Sess. 15; Grim. Proc. 34-5 ; Del. C. 6,4 ; Stats. 94,1 ; S.C. C. 4,18. The Court of Oyer and Terminer has exclusive jurisdicti(m of capital cases, murder, and manslaughter: N.J. Crim. Proc. 23; Pa.* Quart. Sess. 25-26; Crim. Proc. 35-6 ; Del.* 93,1. In Iowa, tlie Circuit and District Courts have generally concurrent civil jurisdiction and appellate jurisdiction, — the former chiefly civil, the latter criminal: lo.* 162,163; but the Circuit Court has exclusive probate jurisdiction: lo.* 2312. In New York, the Court of Oyer and Terminer has general criminal jurisdiction, inferior to that of the Court of General Scssicms : N.Y.* C. Crim. P. 22 and 39; 1882,360. There is a Court of Claims, which decides claims against the state, with appeal to the Court of Appeals : N.Y. 1883,205. The County Court judge, with two justices of the peace, may hold courts of sessions for the county : N.Y. C. 6,15. In Nebraska, tlie judge of a District Court may pass sentence on a plea of guilty to felony : Neb. C. 6,9. In Pennsylvania, the judges of the Courts of Common Pleas are judges of the Courts of Oyer and Terminer, General Delivery, Quarter Sessions, and Orphans' Courts for their respective counties : Pa. C. 5,9. Criminal Courts may, in some states, be estaldished in counties having a certain population: Mo. C. 6,31 ; Tex. C. 5,1 (Criminal District Courts) ; Col. C. 6,24. 118 THE SYSTEM OF JUDICATURE. See also Special Courts, § 557. Appellate Jurisdiction. The superior courts have appellate jurisdiction (1) from the probate courts :Vt.* 2268 ; Ct.* 4,5,11 ; 0.*^ 6708,456; 111.* 37,226 ; Mich.* 6779 ; Minu.* 64,1 ; Kan. C. 3,10 ; Neb. C. 6,17 ; Del. C. 6,10 ; Stats. 96,4 ; Va.* 154,4 and 7 ; W.Va.* 1881,5,47; N.C.* 116 ; Ky.* 113,27; Tenn.* 4999; Mo.* 1102; Ark. C. 7,35 ; Tex. C. 5,8 ; Col.* 1885, p. 187 ; Wash.* 2121 ; Dak.* C. Civ. P. 29 ; Ida.* 1879, p. 12,2 ; Mon.* Civ. C. 681 ; Wy.* 47,232 ; Uta.* ; S.C* Civ. C. 55 ; Ga. C. 6,6,1 ; Ala.* 3954 ; Fla.C. 6,8 ; Stats. 51,21 ; N.M.*; Ariz.* 2349 and 2801. (2) In states which have one, from the Insolvency Court : Mass.* 152,5 ; Vt.* 1810. (3) From all inferior courts and tribunals: Mass.*'l52,5 ; Vt.* 798; Pa. C. 5,10; 0.* 1884, p. 169; 111. C. 6,12 ; Mich.* 6466 ; Wis. C. 7,8 ; lo.* 161 ; Kan.* 28,1 ; Neb.* 19,24 ; W.Va. C. 8,12 ; Stats. 1881,3,2; N.C.* 923 ; Ky.* 1880,1525,3 ; Tenn.* 5006 ; Mo.* C. 6,22-23 ; Ark. C. 7.14 ; Cal.* 10077 ; Ore. ; Nev. C. 6,6 ; Col. ; S.C* Civ. C. 358 ; Ga. C. 6,4,4 ; Stats. 246 ; Ala.* Stats. 657 ; Fla.* Stats. 52,2 ; Wash.* ; Dak.* ; Wy.* Civ. C. 511. (4) From justices of the peace or trial justices: Mass.*; Vt.* 1061,1673 ; Ft.I.* 193,9 ; Ct.* 20, 13,4,1; N.J* Justices Cts. 84,137; 0.*; Minn.* 64,1 ; Md.* 71,77 ; Del.* 92,2 ; N.C. ; Ky.* 1876, March 20 ; Tenn.* 3856 ; Mo.* ; Ark.* 1363 ; 1966 ; Cal.* 10974 ; Ga.* 4157a; Ala.*; Miss. *2352 ; Fla.; La. C. Ill; Wash.*; Dak.*; Ida.* Mon.*; Wy.* ; Uta.* Civ. C. 854 and 26 ; N.M.* ; Ariz.* 2349. (5) From the county courts : Neb. C. 6,17 ; W.Va.* 1882,152 ; Tenn.* 3863 ; Mo.* ; Ark.* 1436 ; Col* 1885, p. 158 ; Ga.* 286; Ala.* 4724; Fla. (6) From Police Courts: Mass. 154,39; Ky.* 1876, March 20, § 7; Ark.*; Cal.* (7) From Municipal Courts: Mass.*; Ct.* 20,13,4,1 ; N.J.* 1879,84,34; Kan.* 1881,37,60 ; Tenn.* 3856,3863; La.* C. P. 568. (8) From the Courts of Common Pleas : N.J. ; 0. 6709 ; 1885, p. 36. (9) From the District Courts: Mass.,* N.J. (10) From the [special] Superior Courts : 0.* 518. (11) From the county commissioners : Md.* 71,89 ; Ark.*; Miss.* 2351. (12) From the Quarterly Courts: Ky.* 28,23,1. Appellate Courts. In Illinois, there are four Appellate Courts, — one each in the northern, ccntrul, and soutiicrn divisions of the state, and Cook County, — with appellate civil jurisdiction from the Circuit Courts, etc., and an appeal therefrom, in cases involving $1,000, to the Supreme Court : 111.* 37,18 and 25. They are held by Circuit Court judges : III.* 37,18. In Louisiana, the Courts of Appeal have minor civil and probate appellate jurisdiction : La. C. 95; 1882,125. So, in Illinois, the Appellate Courts have general appellate jurisdiction from the Superior Courts, except criminal cases and cases involving a francliise, a freehold, or the validity of a statute. In Louisiana, there are Courts of Appeal, with appellate jurisdiction only, in civil and probate matters, from the District Courts : La. C 95. KoTKS. — "To the amount of $1,000. * Except as otherwise provided. " Of the Common Pleas Court only. "^ See also § 75. § 555. The Courts of Chancfery (a) have (1) in general, equity jurisdiction : Vt.* 695; N.J.* Chancers/, 3; Mich.* 6611; Del. C. 6,5; Stats. 95,1; Tenn.* 5022; Ala.* 616; Miss. C. 6,16. In Michigan, the Circuit Court is the court of chancery. With appeal to the Court of Errors and Appeals : N.J. C. 6,2,5 ; Del. C. 6,7 ; to the Supreme Court : Vt.* 771 ; Mich. ; Tenn.* 3872 ; Ala. ; Miss. See also in §§ 553,554. Also, they have jurisdiction (2) of divorce : N.J.* Divorce, 1 ; Tenn.* 5044 ; Miss. ; and (3) of probate matters (see also § 556) : Tenn.* 5041-5 ; Miss. The chancellor, as judge of the Prerogative Court, has, in New Jersey, appellate jurisdiction from the Orphans' Court : N.J. C. 6,4. (B) But in other states, there is no special Court of Chancery, and equity juris- diction is vested (1) in the Supreme Courts fand highest Courts of Appeals) : N.H. ; Mass. ; ]\Ie. ; RI. ; Ct. ; N.Y. ; Vii."" Equity, !-(!> ; 0. ; Ind. ; III* 22,1 ; Wis. ; To. ; Minn. ; Kan. ; Neb. ; Md. ; Va. ; W.Va. ; N.C. ; Ky. ; Mo. ; Ark. ; Tex. ; Cal. ; Ore. ; Nev. ; Col. ; S.C. ; Ga. ; Ala. ; La. ; Territories, U.S. E. S. 1868. THE COURTS. 119 (2) In the Superior Courts: Mass.; Pa.* ib. 1-6 and 8; 111.*; Wis.; lo. ; Minn.*; Kan. ; Neb. ; Md.* 65,1 ; Va. ; W.Va. ; N.C. ; Ky. ; S.C. ; Ga. ; Ala.; La. ; Territories. (.3) In the Special Courts, or many of them: Pa. Equity, 12; 111.; Md.*; (4) In the County Courts : W.Va. C. 8,27. (5) Justices of the peace : Tenn.* 4899. For citations, see §§ 553-4. (C) In many states, the distinction between courts of chancery and courts of law is abolished, and all courts may exercise both kinds of jurisdiction (see Part IV.) : Ct.* 1879,83 ; N.Y.* Civ. C. 267,348 ; Ga. C. 6,4,2. (D) And in many others, the distinction between actions at law and suits in equity is abolished, and there is but one form of action. See in Part IV. § 556. Probate Courts (Orphans', Surrogates', etc., see Chart) have jurisdiction (a) of the probate of wills, the granting of letters testamentary and administra- tion, and generally of the settlement of estates of deceased persons : " N.H.* 189,2; C. 2,80; Mas.s.* 156,2; Me.* 63,6; Vt.* 2018; liL* 179,3; Ct.* 18,11, 1,1,9; 18,11,1,2,1; N.Y.* Civ. C. 2472 ; KJ.* Orph. Ct. 2; Courts, 4:^ • Pa.*« Register, 5 and 18 ; Ann. Dig. 1874,6 ; O. C. 4,8; Stats. 524; 111. C. 6,18-20 Stats. 37,220 ; Mich.* 6759 ; Wis.* 2443; lo.* 2312 ; Minn. C. 6,7 ; Stats. 49,3 Kan. C. 3,8 ; Stats. 29,1 ; Neb. C. 6,16 ; Stats. 1,20,3 ; Md.* 50,5 ; Del.* 89,1 Va.* 154,4; W.Va. C. 8,24; KC* 103; Ky.* 113,26; Teun.* 4980; Mo. C 6,34; Stats. 1176; Ark. C. 7,34; Stats. 1384; Tex. C. 5,16; Cal.* 11295; Ore.* Civ. C. 869 ; Nev.* 925 ; Col. C. 6,23 ; S.C. C. 4,20 ; Civ. C. 37 ; Ga.* 331 ; Ala. C. 6,9 ; Fla. C. 6,11 ; Wash.* 1299 ; Dak.* Prob. C. 1 ; Ida. Civ. C. 31 ; Mon.* Civ. C. 687 ; Wy.* 47,1 ; Uta. Civ. C. 36 ; N.M.* 562 ; Ariz.* 1518. Of suits for legacies or distributive shares : N.J.* ih, 2. (B) Also, in many, of the appointment and removal of guardians (1) of minors : " N.H.* 189,3; Mass.*; Me.*; Vt.*; R.I.* 168,2; Ct.* 14,5,1; N.Y.*; N.J.*; Pa.* Orph. Ct. 8 ; 0. ; 111 ; Mich.* ; Wis.* ; lo.* ; Minn. ; Kan. ; Neb. ; Md.* 50,6 ; Del.* 96,7; Va.*; W.Va.; N.C*;Tenn.*; Mo.; Ark.; Tex.; Ore.*; Nev.* ; Col.; S.C; Ga.*;Ala. ; Fla. ; Wash.* ; Dak.*; Ida.*; Mon.*; Wy.* 60,3 ; Uta.*; N.M.*; (2) of insane persons : « N.H.* ; Mass.* ; Me.* ; Vt.* ; Ct.* 18,4,1,1 ; 0. ; 111. ; Mich.*; Wis.* ; lo.* ; Kan. ; Neb. ; Va.* ; W.Va. ; N.C.* ; Tenn.* ; Mo. ; Ark. ; Tex. ; Ore.* ; Nev.* ; Col. ; S.C. ; Ga.* ; Ala.* 693 ; Wash.* ; Dak.* ; Wy.* 79,1 ; Uta.* ; N.M.* ; (3) of spend- thrifts or drunkards, or others requiring guardianship : " N.H.* ; Mass.* ; Me.* ; R.I.* ; Ct.* 18,4,2,3; O. ; 111.; Mich.*; Wis.*; lo.* ; Kan.* 1727; Va.* ; W.Va. ; N.C.*; Tex.; Ore.*; Dak.*; Wy.* (C) And in most states, generally, of the management and accounting of such wards' estates:" N.H.* ; Mass.*; Me.*; Vt.* ; R.I.* 179,9; Ct.* 4,5,39; N.J.*; Pa.*; 0.; Ilk; Mich.* 6760; Wis.*; lo.*; Minn.; Kan.; Neb.* 1,20,4; W.Va. ; N.C* ; Ky.* ; Tenn.* ; Mo. ; Ark.* ; Tex. ; Ore.* ; Nev.* 934 ; Col. ; S.C* Civ. C. 37-8; Ga.*; Ala.*; Fla.; Wash.*; Dak.*; Ida.*; Mon.*; Wy.* ; Uta.*; N.M.* (D) Also, in many, of the adoption of children -.^ KH.* 189,4 ; Mass.* ; Me.* ; Ct.* 14,4,1 ; Tenn.* And in others, of the change of names : ' ]\Iass.,* Me.,* Tenn.,* Ark.* And in others, of binding apprentices : '^ Ilk* 37,93 ; Kan.* ; Neb. ; W.Va.; N.C.*; Tenn.*; Mo. ; Ark.*^ Tex.; Ga.*; Ala.*; Wash.*; N.M.* In Arkansas, of relieving minors by decree from the legal disability of nonage. ^ (e) Also, in several, of the assigning of dower and homestead in the estate (1) of a decedent/ N.H.* ; Ct.* 18,11,1,4,2 ; Minn.*; Tenn.*; Ark.*; Ore.*; S.C; Ala.* (2) In cases of lunacy : Ark.,* S.C. (F) In many states, also, of trusts ci'eated by will :* N.H.*; Mass.* 141,27 ; Vt.* 120 THE SYSTEM OF JUDICATURE. 2300 ; Ct.* 18,10,5 ; N.J.* ; Wis * ; lo.* ; S.C* And in others, of trusts, generally : ^ Vt.*; Ct.* 18,10,3; N.J.*; Va.* (G) In most states, of the sale of real estate (1) of a decedent:" N.H.* ; R.I.* 179,10; 0.* 525; 111.; lo.* ; Minn.*; Md.* 50,204; Tenn.* ; Mo.; Ark.*; Ore.*; Xev.*; Ga.*; Ala.*; Fla.* 51,20; Dak.*; Mon.* Prob. C. 1; (2) of a ward:" R.I.* 179,11; Ct.* 4,5,18; 0.*; lo.*; Mo.; Ark.*; Ore.*; Nev.* ; Fla.* ; Ida.* ; Mon.* ; N.M.* 656 ; (3) of a trust : " lo.* (H) And in many, of petitions or process for partition of the lands of decedents :° N.H.* 189,5; R.I.* 179,9; Minn.*; Tenn.*; Ark.*; Tex.; Nev.*; Ala.*; Ida.*; Mon.* (I) In several, of executing contracts of sale of land made by the decedent:" Ct.* 4,5,29 ; 0.* (J) In a few, of habeas corpus :" 0.,* Kan.* (K) Of granting marriage licenses : ^ 0.* (L) Of determining compensation for land taken in eminent domain : " 0.* (M) They have jurisdiction of divorce suits : '' Uta.* (N) Of suits for legacies and distributive shares : " N. J.* Orph. Ct. 3. (O) In New England, the judges and registers of probate are generally judges and registers of insolvency: Mass.* 1.56,1; Me.* 70,1; Vt.* 1774; Ct.* 18,11,2,1. And so, in other states, they have jurisdiction of insolvency cases: 0.,* Tenn.* (P) The Courts of Insolvency have original jurisdiction of all cases of insolvency : " Mass.* 157,2 ; Me.* ; Vt.* 1775. And (Q) in some territories, the Probate Courts have civil jurisdiction (1) of suits involving not more than $500 : Ida.*; Mon.* Civ. C. 688 ; U.S. R. S. 1932. (2) Like justices of the peace: Wy.* 28,2,3. And (R) in several, ciiminal jurisdiction (1) concurrent with justices of the peace : Ida.*; Wy.* (2) Minor criminal jurisdiction, but greater than that of a justice of the peace : Mon.* Cr. Pr. 6 ; 1881, p. 42. (3) Criminal jurisdiction concurrent with the Court of Com- mon Pleas : O.* 6454 ; 1884, p. 89. (S) In others, they have appellate jurisdiction in minor civil cases from justices of the peace: N.M.* In many states, the county courts have probate jurisdiction : N.Y. C. 6,15 ; 111. C. 6,18; Wis.* 2443; Neb. C. 6,16; Va.* 154,4; W.Va. C. 8,24; Ky.* 11.3,26; Tenn.* 207; Tex. C. 5,16; Stats. 1789; Ore. C. 7,12; Col. C. 6,23; Fla. C. 6,11. See also § 560. In others, the District Courts: Nev. C. 6,6; La. C. 109. In one, the Chancery Courts : Miss. C. 6,16. In one, the clerks of the Superior Court : N.C.* 102. In two, the Circuit Courts : Ind.* 1314 ; lo.* 2312. In one, the Superior Courts: Cal.* 11295. But in a few, special Probate Courts may be created in counties having over a certain population: N.Y. C. 6,15 (Surrogate) ; 111. C. 6,20. Notes. — " See also in Part IV., Probate Code. ^ See Art. 176. <= See in Part V. '^ See Part II., Div. 2. e See in Part III. -^ See also Art. 316. '' See in Part IV. * In special counties. § 557. Special Courts. In some states, there is a general provision in the Constitution that the legislature shall have full power to erect inferior courts, civil and criminal : N.H. C. 2,4; Mass. C. 2,1,1,3 ; Ct. C. 5,1 ; KY. C. 6,19. In Massachusetts, the Municipal Court of the city of Boston has extraordinary powers : Mass.* 1.^)4,59 and 50. In Maine, there are Superior Courts in Cumberland, Aroostook, and Kennebec Counties, having civil and criminal jurisdiction, and appellate from Police Courts: Me.* 77,62 and 66 and 03,67; 1885,324. In Rhode Island, thore is a Municipal Court in Providence, with minor, civil, criminal, and probate jurisdiction : R.I.* 179,2 ; and special Courts of Common Pleas : R.I.* 195,L In New York, there is a Suporior Court of the city of New York ; a Court of Common Pleas for the city and county of New York ; a Superior Court for Buffalo ; and a City Court for Brooldyn, by the Constitution : N.Y. C. 6,12. And the Code recognizes a Court of Common Pleas for the city and county of New York, and also a Superior Court, District Courts, and THE COURTS. 121 Court of General Sessions, in the same county; a Superior Court in Buffalo; city courts, having jurisdiction like that of the Supreme Court except in amount, in Brooklyn, Long Island City, and Yonkers ; a city court in the city of New York ; a Mayor's Court in Hudson ; a Recorder's Court in Utica and Oswego ; a Justice's Court in Albany, besides minor police or criminal courts not of record: N.Y.* Civ. C. 2-3; 263 and 267; 315; 1832,410; 1833,20. In Pennsylvania, there are four co-ordinate Courts of Common Pleas in Philadelphia, and two iu Alleghany County : Pa. C. 5,6 ; Police and Magistrates' Courts in Philadelphia, etc. : ib. 12 ; Ann. Dig. 3Iag. Cts.* 1 and 13 ; a District Court in Philadelphia, in Alleghany and in Cambria Counties: P(i.* Distr. Cts. 1,41,64; and Criminal Courts in Dauphin, Lebanon, and Schuylkill Counties : Pa.* Quart. Sess. 40 ; Mayors' Courts in a few cities : Pa.* Mayors' Cts. 1 and 38. In Connecticut, there are in several counties special Courts of Common Pleas : Ct.* 4,2,1 ; and District Courts : 4,2,4-5 ; and several city courts : 4,2,21. Iu Illinois, there is a Superior Court in Cook County, and a Recorder's (Criminal) Court in Cook County: 111. C. 6,26; also city courts in various cities, and various city courts with civil and criminal jurisdicti(m, like Circuit Courts : 111.* 37,240. There is a Commission of Claims, consisting of one judge of the Supreme Court and two judges of the Circuit Court, having jurisdiction of claims against the state : 111. 26a,l-2 and 9. Some counties have special Pro- bate Courts : 111.* 37,95a. (Such counties as have over 70,000 population : 111.* 37,216.) In Ohio, there is a special Superior Court of Cincinnati, and also in Montgomery County, courts of record with general original civil jurisdiction : 0.* 482,493,504,512. In Indiana, there are Superior Courts in every county containing a city with more than 40,000 inhabitants (Ind.* 1342), having concurrent original, appellate, criminal, civil, and probate jurisdiction with the Circuit Courts : Ind.* 1.351. And there are criminal courts in Marion and Allen Counties, having unlimited criminal jurisdiction : Ind.* 1360,1372. In Wisconsin, there are Municipal Courts of Record in Milwaukee, Ripon, and Dane, — the former one has criminal, the latter two have civil, jurisdiction concurrent with the Circuit Court : Wis.* 2484,2499,2515 ; and the county courts, of Brown, Dodge, Fond du Lac, Mil- waukee, and Winnebago, have extensive civil jurisdiction other than probate : Wis.* 2465. In New Hampshire, any town may by vote establish a Police Court: N.H. 215,1. In Michigan, there are Superior Courts in the cities of Detroit and Grand Rapids (Mich.* 6535,6564) having concurrent jurisdiction with the Circuit Court : Mich.* 6547,6576. In Minnesota, there are Municipal Courts in the cities of St. Paul, Minneapolis, and Still- water, having civil jurisdiction resembling that of justices of the peace, and criminal jurisdic- tion : Minn.* 64,81-2 and 88 and 109 and 114 and'l31-2 and 134. In Baltimore City there are six courts, — the Supreme Bench of Baltimore City (having appellate jurisdiction from the other five), the Superior Court of Baltimore City, the Court of Common Pleas, and the Baltimore city court, having concurrent civil common law jurisdiction ; the Circuit Court of Baltimore City, with exclusive equity jurisdiction, and unlimited ordinary civil jurisdiction; and the Criminal Court of Baltimore. But the Court of Ccmmion Pleas has exclusive jurisdiction in insolvency : Md. C. 4,27-.30. And the judges of the Supreme Bench Court are the judges of these othor five courts : Md. C. 4,27-32. In Delaware, there is a Municipal Court in Wilmington, having criminal jurisdiction, which is a court of record : Del.* V. 17, C. 207,14-15. In Kentucky, there is a Law and Equity Court in Louisville, a City Court in Louisville and Lexington, and Police Courts: Ky. C. 4,40; 4,41 ; Civ. C. 763; 1834,567; and also a Court of Common Pleas for the counties of McCracken, Ballard, and Hinman; for those of Crittenden, Henderson, Livingston, Union, and Caldwell; for Warren County, and for Fayette, Bourbon, Bath, Madison, Scott, and Woodford Counties, respectively: Ky.* 28,10,1-3; 1874, Feb. 6 ; 1884,370 and 1008 ; they are of record, having a seal, and criminal jurisdiction like the Circuit Courts: Ky.* 28,10,7. There is a Criminal Court for the counties of Kenton, Camp- bell, Harrison, Bracken, Robertson, and Pendleton, and also in the sixteentli district ; a Court of Record, with judge elected by the people, M-ho holds office six j'ears, and has criminal jurisdiction in lieu of the Circuit Court: Ky.* 28,11,1-2 and 5 ; 1876, Feb. 28; 1884,417. And for the same counties (except Harrison and Robertson) a Chancery Court, with equity jurisdiction like the Circuit Court, and a judge or chancellor elected and holding office in like manner: Ky.* 28,12,1-2 and 1884,1457; 8; and Quarterly Courts having special juris- diction in many counties. In Tennessee, there are a great many special Criminal, Circuit, Common Law, Chancery, 122 THE SYSTEM OF JUDICATURE. County, Probate Courts hi the several counties and districts : Tenn.* 130-205 ; 352 ; 354 ; 18S5, 105 and 121. In Virginia, there are special Circuit Courts in Portsmouth, Richmond, and other cities : Va.* 155,;i-4 ; a Chancery Court in Richmond, having probate and equity jurisdiction and other jurisdiction like that of a Circuit Court : Va.* 155,5-6; a Court of Probate and Record, and a Hustings Court, held by the city judge (Va * 154,21-3), and having criminal jurisdic- tion. And there are special Corporation Ct)urts in Williamsburgh, Manchester, Roanoke, and Winchester: Va.* 154,43-4; 1874,209; 1884,418 and 170; a Circuit Court for Henrico County outside Richmond : Va.* 155,13. In West Virginia, the legislature have power to establish courts of limited jurisdiction in any city or county with appeal to the Circuit Court; and there is a Municipal Court in Wheel- ing: W.Va. C. 8,19. Such Couuty Courts exist in many counties; and there is a Municipal Court in Huntington : W.Va.* 1879, 38. In Missouri, in St. Louis and Kansas City, there are Courts of Appeals, having together appellate jurisdiction from all counties in the state; and appeals thence go to the Supreme Court: Mo. C. 6,12; C Amt. 1884,1-2. There are special Common Pleas Courts in some counties : Mo.* 1105. In Texas, there is a special Criminal District Court for the counties of Galveston and Harris, with general criminal jurisdiction : Tex.* 1482,1496. In Nevada, there are several Recorder's Courts established in cities, with minor civil and criminal jurisdiction : Nev.* 938-9. In Arkansas, the legislature may authorize the judges of the county courts to hold severally a quarterly Court of Common Pleas in their respective counties, which shall be a Court of Record with criminal jurisdiction, and civil jurisdiction not involving the title to real estate: Ark. C. 7,32. There is a Pulaski Chancery Court : Ark.* 5398. In South Carolina, there is a city court in Charleston having jurisdiction of cases arising under city ordinances : S.C* 2125,2127 ; and a mercantile court, composed of the Charleston Chamber of Commerce : S.C* 2146. In Louisiana, there is a special Court of Appeals in the parish of Orleans, with exclusive appellate, civil, and probate jurisdiction therein ; and also in New Orleans, a special civil (and probate) and a Criminal District Court; and four city courts of New Orleans: La. C. 128,130, 136; 1882,128. Also a Recorder's [criminal] Court in Shreveport: La.* R. S. 2119-2121. In Colorado, there is a Superior Court in Denver, having jurisdiction like the district court : Col. 3206 ; * and there are Criminal Courts in Arapahoe, Lake, and Pueblo Counties : Col.* 1002. In Georgia, there are numerous Corporate or Police Courts : Ga.* 480; and a Pohce Court and a city court in Savannah : Ga.* 4880,4903. In Alabama, there is a city court of Montgomery, having law and equity jurisdiction ; and a Criminal Court in Mobile : Ala.* 1881,214 ; 1881,208 ; 1879,110. In California, there is a board of examiners, consisting of the governor, secretary of state, and attorney-general, which passes on claims against the state : Cal. 304,661,604. In Washington Territory, there are special District Courts in Kittitas, Garfield, Chehalis, Whatcom Counties: W^ish.* 1883, pp. 46,47,48,-50. In Arizona, there are County Courts in several specified counties: Ariz.* 1885,.59 and 95 and 101 and 107. § 558. The Municipal Courts have generally (a) minor original juri,sdiction, (I) criminril: 0.* 1817; Kan.* 1881,37,51 ; W.Va. " C. 8,27; Stats. Chaps. 34,35; N.C.* 802,808 ; Ky.* Cr. C. 13 ; 1876, March 18 ; Ark.* 196G ; Cal.* 4426 ; D.C.* 1049 ; (2) civil : N.Y.* Civ. C. 340 ; Pa.* 1879,41 ; 111.* 37,95 ; W.Va. ;« Ky.* ^ 28,13,1-5 ; Tex.* 1161-4. For their equity jurisdiction, see in § 556. For more detailed provisions, etc., see in Parts IV. and V. They have generally, also, juris- diction of the violation of city ordinances, and of city taxes and licenses. They '^ have frequently probate jurisdiction ; see § 556. (b) Municipal Courts generally have, in many states, minor criminal and civil jurisdiction, resembling that of justices of the peace or trial justices (§ 558): N.H* 215,5; 252,8; Mass * 154,11 and 50 ; Me.* 132,2 ; 83,3 ; Ct.* 20,13,2,1 ; N.J.*"''^ District Courts, 6 (App.); 1878,87; 1879,84,25 ; 0.**-* 1787,1822,1830; THE COURTS. 123 111.* 37,95 ; Va * 154,4 ; 1874,144 ; Ark. « C. 7,43 ; Tex. ^ C. 5,16 ; Ore. ^ C. 7,12 ; Civ. C. 868 ; Col. '^ C. 6,23 ; Ga.* 282,297 ; Fla.^ C. 6,11 ; Stats. 51,2 ; Ind.* 3207. But the Courts of Quarter or Special Sessions have the crimiual jurisdiction, as above : N.Y.* Crim. C. 56 ; N. J.* Crim. Procedure, 23. But in others, county courts have civil jurisdiction up to $1,000 or other sum, and criminal juriscUction of offences not infamous; also, appellate jurisdiction from the justices of the peace : ill.* 37,95; Neb. C. 6,1G; Stats. 1,20,2; 1883,38,1; Tex. ; Ore. ; Col.* 484. They have criminal jurisdiction of misdemeanors; Mass.*; O.*'' 1824 ; Va.* 154,5; Tex.* C. Cr. Proc. 72 ; Ore. ; Ala.* 718; or of cases not capital : Va.* 154,5 ; 1875, 271 ; civil, com- mon law, and equity jurisdiction in all cases above $20 : W.Va. C. 8,27. Except where the title to real estate is drawn in question ; 111., Neb., Ky.,*^ Tex. (C) They have appellate jurisdiction (1) from justices of the peace or their courts : N.Y.*'^ Civ. C. 3045 ; 111.*'^ 37,95 ; Va.*" 154,4 ; 1874,144 ; W.Va.*'' C. 8,29; Ky.*<^ 28,24; Tex.*'' 1165-6; C. Cr. Pr. 75; Col.;'' (2) from Police Courts : Ky.* ; '^ (3) from Mayors' Courts : Ky.* ' But, in other states, the city courts have jurisdiction generally concurrent with the Circuit Courts : 111.* 37,240. The county courts hare concurrent jurisdiction with the Circuit Courts, in counties having a special Probate Court : 111.* 37,95a. In New Jersey, there are District Courts in cities over 20,000 in population : N.J. App. Distr. Cts. 2; 1878,72; having jurisdiction to $300 not involving the title to real estate: N.J. 1882,139. In Virginia, there are Corporation or Hustings Courts in every town having 5,000 popula- tion: Va. C. 6,14 ; having civil jurisdiction like the Circuit Court, and criminal jurisdiction like the county court : Va.* 154,38. In Louisiana, the Parish Courts have jurisdiction of the affairs of absentees, of guardian- ship and emancipation of minors, and of insane persons : La.* R. S. 2026. They have appel- late jurisdiction from justices of the peace : La.* R. S. 2047 ; and minor civil and criminal jurisdiction : La.* C. P. 127. Notes. — « Of the City Court. ^ Of the Police Court. <= Of the Quarterly Court. <^ Of the County Court. « Of Mayor's Courts. -^ Of the Recorders' Courts. § 559. Justices of the Peace have minor jurisdiction in civil matters not in- volving more than a small sum: KH. C. 2,77; 214,1; Mass.* '^ 155,12 ; Me.*" 83,3; Vt.*821; Pt.!.*-^ 196,26; Ct.* 19,4,1; KY.** Civ. C. 2863 ; C. Crim. 56, 62; N.J.* Justices Courts, 1 ; 1879,80; Pa.* Justices, etc. 30; 1879,211 ; 0.* 585; Ind.* 1433; 111.* 79,13; Mich. C. 6,18; Stats. 6814; Wis.* 3572; To. C. 1,11 ; 11,1 ; Stats. 3508 ; Minn. C. 6,8 ; Stats. 65,5 ; Kan.* 1,81,2-3 ; Neb. C. 6,18 ; Md.* 56,9 ; 68,* 6 : Del* 99,1 ; 100,1 ; Va.* 48,7 ; 1880,108 ; W.Va. C. 8,29 ; N.C. C. 4,27 ; Stats 834,887 ; Ky.* 28,21,1 ; Tenn.* 4898 ; Mo.* 2835-6 ; Ark. C. 7,40 ; Tex. C. 5,19; Stats. 1539; Cal. C. 6,11; Stats. 10112; Territories, U.S. E. S. 1926-7 ; Ore.* Civ. C. 881 ; Nev.* C. 6,8 ; Stats. 1570 ; Col. C. 6,25 ; Stats. 1924-5 ; S.C." C. 4,22 ; Stats. 824-828 ; 845 ; Civ. C. 71 ; Ga. C. 6,7,2 ; Stats. 446,4132 ; Ala. C. 6,26 ; Stats. 757 ; Miss. C. 6,23 ; Fla. C. 6,15 ; Stats. 128,6 ; La. C. 125 ; D. 2047 ; Wash.* 1710 ; 1883, p. 44 ; Dak.* Just. C. 2 ; Ida.* Civ. C. 36 ; L. 1883, p. 5 ; Mon.* Civ. C. 715 ; Wy.* 71,2 ; Uta.* C. Civ. P. 45 ; N.M.* 2321 ; Ariz.* 196 ; D.C.* 997; U.S. E. S. 1926-7 ; 1883,33. Or not, in most states, involving the title to real estate: N.H. ; Mass. 155,24; Me. ; Vt.* ; E.I. ; N.Y.* Civ. C. 2863 ; N.J.* ; Pa.* ; 0.* 591 ; Ind.* ; AVis.* 3573; lo.; Minn.* 65,6; Kan.* 1,81,8 ; Neb.* 2,907 ; Md.* 68,7 ; N.C.*; Mo.* 2837; Ark; Tex.* 1544; Cal.*; Ore.* Civ. C. 882 ; Nev.* ; Col.* 1930 ; S.C* Civ. C. 78 ; Fla.* 128,7 ; Territories, U.S. E. S. 1807 ; Wash.* 1711 ; Dak.* ; Ida. . Civ. C. 37 ; Mon.* 1883, p. 46 ; Wy.* 71,3 ; Uta.* ; N.M.* ; Ariz.* 197 ; D.C.* Nor for foreclosure of a mortgage : Wash.* But not, in some states, in chancery matters: lo., ]\I(>.* ; nor of suits by the state to recover penalties and forfeitures: Tex.,* S.C.,* Fla.*; nor replevin: N.J.*; nor libel or 124 THE SYSTEM OF JUDICATURE. blander: N.J.*; 0.*; Ind.* ; Wis.*; Minn.*; Kan.*; Neb.*; Md.* ; Ky. 1876, March 20, ^ 11; Mo.*; Tex.*; Ore.*; S.C*; Fla.* ; Wash.*; Wy.* ; N.M.* ; D.C.* ; nor false iinprisomnent : N.J.,* 0.,* Wis.,* Minn.,* Mo.,* Ore.,* S.C.,* Fla.,* Wash.,* Wy.,* N.M.*; nor malicious prosecution: 0.,* Ind.,* Wis.,* Minn.,* Kan.,* Neh.*, Mo.,* Ore.,* S.C.,* Fla.,* Wash.,* Wy.,* D.C. ; nor contract for real estate : 0.,* Kan.,* Neb.,* Wy.*; nor for breach of nuirriae^e contract: Ind.,* Minn.,* Md.,* Ore.* ; nor against an administra- tor for a debt due from the decedent : Wis.,* Minn.,* Mo.* ; nor assault: N.J.,* 0.,* Wis.,* Kan.,* Neb.,* S.C.,* Wy.,* D.C.*; nor for mechanics' liens : Md.,* Tex.,* Nev.,* Wash.*; nor for divorce : Tex.* ; nor for aim. con. or seduction : Ore.,* S.C.,* Fla,* Wash.,* Wy.* They have, in nearly all states, minor criminal jurisdiction. (1) In various specified cases: Me.* 132,2-5; R.I.* 197,15; 1882,310; 0.* 610; Mich. C. 6,18; Del.* 97,8; Va. 1878,311,25,1; W.Va.* 98,2; Tenn.* 5797; Ark. C. , 7,40 ; Cal.* 10115 ; Ore.* Just. Cts. 2 ; Nev. ; Col* 2042 ; Ala.* 4628 ; Fla.* 129,1 ; Dak.* C. Cr. P. 19 ; Ida. Civ. C. 39 ; N.M.* 2321 ; Ariz.* 198 ; (2) of offences punishable only by fine or imprisonment in the county gaol : Miss.* 2216 ; (3) to $50 fine or thirty days : N.C. C. 4,27 ; Stats. 892 ; (4) to $7 fine or thirty days : Ct.* 20,13,2,1 ; (5) to $200 fine: Ilk* 38,381; Tex. C. 5,19; C. Cr. P. 76; (6) to $100: S.C; to $300 : Wash.* 1886 ; 1883, p. 44 ; or six months : Uta.* C. Civ. P. 48 ; or a year : Ariz.* ; (7j to $100 or thirty days : lo. C. 1,11 ; Stats. 4660; Ky.* Cr. C. 13 ; Dak.* Just. C. 3 ; or six months : Wis.* 4739 ; Ida. ; Wy.* 1877, p. 7-3, § 1 ; or three months : Minn. C. 6,8 ; 65,140 ; Neb. C. 6,18 ; Mon. 1881, p. 42 ; Cr. C. 6 ; (8) to $20 fine or six months' im- prisonment : N.H.* 252,4 ; Me. ; to $20 fine or three months : R.I.* 197,1 ; (9) to $50 fine or six months' imprisonment : Mass.* 155,45 ; (10) to $10 fine : Vt.* 1666 ; (11) of misdemeanor punishable by fine only : Ind.* 1637 ; Mo.* 2024 ; S.C. ; (12) to $500 fine or one year's imprisonment : Kan.* 83,1 ; or six months : Nev.* 936, They are, in nearly all, conservators of the peace, and have jurisdiction accord- ingly : N.H.* 254,7 ; Mass.* 155,1 ; Me.* 132,2; Vt.* 2586 ; E.I.* 197,5 ; Ct.* 20,13,2,4 ; N.J.* Crim. Proc. 1 ; 0.* ; Ind. C. 7,15 ; 111.* ; Mich. C. 6,19 ; Wis.* ; Neb.* 3,262 ; Md.C.4,42 ; Del.* 97,2 and 7 ; W.Va. ; N.C.* 893; Ky. C. 4,34; Tenn.* 398 ; Mo.* 2822 ; Ark. ; Nev.* 2974 ; Col* 2041,976 ; S.C. C. 4,23 ; Ga.* 445; 4130a ; Ala.* 758 ; Miss.* 3112; La. C. 126 ; D. 1016 ; Wash.* 1921 ; Dak.* ; Ida.* ; N.M.* 2322. They have jurisdiction of offences against municipal regulations: Me.* 132,4; 0.* 1833; W.Va.* 1885,3G; La.* D. 2053; N.M.* So, in others, of all offences less than felony: Ark.* 1966; Wy.* 1877, p. 74, § 1. In Virginia, they have "the same jurisdiction they had when the Constitution was adopted : " Va. 48, G. In Columbia, they have no criminal jurisdiction : D.C* 998. But always with right of appeal or writ of error to a liigher court : N.H.* 214,5 ; Mass*155,28; Me.*83,18; 132,15; Vt.* 1061,1673 ; E.t* 218,1; 219,1; Ct.* 20, 13,4,1 ; N.J.* Justices Cts. 144 ; Crim. P. 83 ; Pa. C. 5,14 ; Justices, 53 and 85 ; 0.* 614,6583 ; Ind.* 1499,1643 ; 111.* 37,389 ; 79,62 ; Mich.* 7031 ; Wis.* 4761; lo.* 3575,4703; Minn.* 65,113 and 158; Kan.* 83,21; 81,120; Neb.* 2,1006; Md. C. 4,42; Va.* 48,10; 1878,311,25,2; W.Va.* 110,79; 1882,145; N.C.* 875,900 ; Tenn.* 3856 ; Mo.* 3039,2058 ; Ark. C. 7,41 ; Tex.* 1638 ; Cal* 10974; Ore.* J^tst. Cts. 67 and 108 ; Nev. ; Col* 1978 ; S.C. C. 4,24; Ga.* ; Ala. ; Miss.* 2352 and 2355 ; La.*; Wash.* 1849,1858,1898; Dak* Just. C. 90 and 136 ; Ida.* Civ. C. 665 ; Mon.* Civ. C. 802 ; Cr. C. 504 ; Wy.* 71,66, p. 433, § 34 ; Uta.* 1884, 54,90 ; N.M.* 2390 ; Ariz.* 861 ; D.C* 1027. So, in. a few states, always in criminal cases only: N.C. ; Tex. So in civil cases over $20 in amount : Tex. Over $5 in amount : Del.* 99,24. In cases of infamous crimes, and in civil cases : Ct.* 20,13,2,8. Notes. — " In these cases and in these states, certain justices of the peace are appointed trial justices, with jurisdiction as above; and ordinary justices have no such jurisdiction : Mass.* 155,6; ile.* 83,1 ; K.I.* 196,2. * So, in these, they are judges of Special Sessions. JUDGES. 125 Art. 56. Judges. (Statutory provisions are not, except in §§ 560,561, incor- porated with this article.) § 560. Judges : Appointment. The Constitutions of four states provide that all judges not specially provided for in the Constitution shall be elected (1) by the people of their respective districts : Pa. C. 5,15 ; 0. C. 4,10 ; Minn. C. 6,9 ; Tenu. C. 6,4. (2) In one, by the legislature in joint session : Vt. C. Amt. 10. (3) In one, that all judges shall be appointed by the governor : Del. C. 3.8. (4) In three, by the governor and council : KH. C. 2,46 ; Mass. C. 2,2,1,9 ; Me. C. 5,1,8. In Delaware, there are five judges, of whom one is chancellor, one chief-justice, and tlie other three associate judges. The Court of Errors and Appeals is composed of the chancellor as chief and two of the other judges. The Superior Court and Court of General Sessions con- sists of the chief-justice and two associate judges. The chancellor holds the Court of Chancery. The Orphans' Court is held by the chancellor and one associate judge. The Court of Oyer and Terminer consists of all the judges except the chancellor: Del. C. 6,1-10. Judges of the Supreme Courts are, by the Constitutions of most states, (a) elected by the people of the state : Pa. C. 5,2 ; O. C. 4,2 ; Ind. C. 7,3 ; lo. C. 5,3 ; Minn. C. 6,3; Kan. C. 3,2; Neb. C. 6,4; W.Va. C. 8,2; N.C. C. 4,21 ; Tenn. C. 6,3 ; Mo. C. 6,5 ; Ark. C. 7,6 ; Tex. C. 5,2 ; Cal. C. 6,3 ; Nev. C. 6,3 ; Col. C. 6,6 ; Ala. C. 6,12. (B) In several, by the two houses of the legislature in joint conimittee : R.I. C. 10,4 ; Va. C. 6,5 ; S.C. C. 4,2 ; Ga. C. 6,12,1. (C) In others, by the electors of their respective judicial districts : KY. C. 6,13; 111. C. 6,6 ; Md. C. 4,3 ; Ky. C. 4,4 ; Ore. C. 7,2. (D) lu a few, they are appointed by the governor and confirmed by the senate : N.J. C. 7,2,1 ; Miss. C. 6,2 ; Fla. C. 6,3 ; La. C. 82 ; D.C.* 750 (i. e., by the United States President and Senate). (E) In one, they are " nominated by the gov- ernor and appointed by the legislature : " Ct. C. Amt. 26. (P) In the territories, they are appointed by the President and confirmed by the Senate of the United States : U.S. R. S. 1877. The judges of the Circuit Court compose the Supreme Court: Mich. C. 6,2 ; Wis. C. 7,4. Judges of the Court of Appeals are, in two states, elected by the people of the state : N.Y. C. 6,2; Tex. C. 5,5. In New Jersey, they consist of the chancellor, the justices of the Supreme Court, and six judges, which latter are appointed by the governor and confirmed by the senate; and the secretary of state is clerk : N.J. C. 6,2,1 ; 7,2,1. In Maryland, they consist of seven of the chief judges of the Circuit Court and one judge specially elected from Baltimore : Md. C. 4,14. In Louisiana, they are appointed by the legislature in joint session : La. C. 96. In Illinois, the Appellate Courts are held by a judge of the Supreme Court : 111. C. 6,11. Judges of the Superior Courts are, in most States, elected by the people of their respective districts, circuits, or counties: KY. C. 6,15; Pa. C. 5,15; O."-* C. 4,3 ; Ind. C. 7,9 ; 111. C. 6,13 ; Mich. C. 6,6 ; Wis. C. 7,7 ; lo. C. 5,5 ; Minn. C. 6,4; Kan. C. 3,5 ; Neb. C. 6,10 ; Md. C. 4,3 ; W.Va. C. 8,10 ; KC. C. 4,10 ; 4,21 ; Ky. C. 4,21 ; Tenn. C. 6,4 ; Mo. C. 6,25 ; Ark. C. 7,17 ; Tex. C. 5,7 ; Cal C. 6,6 ; Nev. C. 6,5 ; Col. C. 6,12 ; Ala. C. 6,12 ; La. C. 109. In others, they are elected by the legislature in joint convention : N.J." C. 7,2,2; Va. C. 6,11 ; S.C. C. 4,13; Ga. C 6,3,2. In a few, they are appointed by the gov- ernor and confirmed by the senate : N.J. C. 7,2,1 ; Miss. C. 6,11 ; Fla. C. 6,7. In several, the judges of the supreme court are the judges of the superior courts, one or more for each county : R.I.* 193,1-2 ; N.J.*" C. 6,5,2 ; Ore. C. 7,8 ; Territories, U.S. R. S. 1865. So, of course, in states where the judges of the supreme court on circuit correspond to the superior court : N.H., Me. In Vermont, a judge of the Supreme Court is chief judge, and there are two associate judges elected by the people of the county : Vt. C. Amt. 24,2 ; Stats. 796. The Courts of Oyer 126 THE SYSTEM OF JUDICATURE. and Terminer are held by a justice of the Supreme Court: N.Y.* C. Cr. P. 23; 1822,300. The judges of the Superior Court are composed of the judges of the Supreme Court of Errors and six other judges appointed in the same way: Ct.* 4,3,1 ; 4,4,1; C. Amt. 26. Any two judges of the Court of Common Pleas constitute the Court of Quarter Sessions ; any one of them, with a judge of the Supreme Court, the Court of Oyer and Terminer: N.J.* Crim. Proc. 23 and 26. The Court of General Sessions in New York is held by a county judge with two judges of sessions: N.Y.* C. Cr. P. 42. The Court of Quarter Sessions, by the judge of Common Pleas : Pa.* Quart. Sess. 2. The Chancellors are, in three, elected by the people of their respective districts : Ky.* Civ. C. 774; Tenn. C. 6,4 ; Ala. C. 6,12. In one, they are appointed iu the same manner as judges of the Circuit Courts : Miss. C. 6,17. In one, the chancellor is nominated by the governor and confirmed by the senate : N.J. C. 7,2,1. The vice-chancellors are appointed by the chancellor : N.J.* Chanc. 115; 1881,105. In one, the justices of the Supreme Court are chancellors, with jurisdiction throughout the State : Vt.* 698. So, iu one, the Circuit Courts are the Courts of Chancery : Mich.* 6.592. The Chancellor is, in New Jersey, the ordinary, surrogate-general, and judge of the Pre- rogative Court : N.J. C. 6,4,2. Judges of Probate are, in most states, (A) elected by the people of their respec- tive counties or other probate districts : Me. C. 6,7 ; Yt. C. Amt. 17 ; Ct. C. Amt. 9 ; N.J.<^ C. 7,2,6 ; 0. C. 4,7 ; 111. C. 6,18 and 20 ; Mich. C. 6,13 ; Wis. C. 7,14 ; Minn. C. 6,7 ; Kan. C. 3,8 ; Md. C. 4,3; Mo. C. 6,34; S.C. C. 4,20; Ga.* 319 ; Ala. C. 6,12; Wash.* 1297 ; Mon.* G. L. 382; Wy.* 28,2,1; Uta.* 173; Ariz.* 1881,83,1. But in several, (B) the judge of the County, Common Pleas Court (§ 554), or other Superior Court, is surrogate or probate judge for the county, except where the legis- lature provide otherwise in counties having more than a prescribed number of inhab- itants: N.Y. C. 6,15; Pa. C 5,22; 5,9; Orph. Ct* 2. And in others, the County Court has probate jurisdiction. See § 556. So, iu others, the Superior Court. See § 554. So, in one, the judge of the County Court is judge of the Probate Court : Ark. C. 7,34. And iu one other, the clerks of the Superior Court have probate jurisdiction : N.C.* 102. In one, the town councils are courts of probate : R.I.* 179,1 ; but any city or town may elect a judge of probate, or delegate to its council power to do so : E.L* ib. 2. In two, the judges of the Courts of Common Pleas for any county constitute the Orphans' Court : N. J.* Orph. Ct. 1 ; Courts, 59; Pa.* Orph. Ct. (Ann. Dig. 1874) 23, except iu Philadelphia and two other counties ; the Ordinary has ordinary probate jurisdiction: N.J.* Courts, 49; and the Prerogative Court is the Supreme Court of Probate : N.J. C. 6,4,3. Judges of Special Courts are, in most states, elected by the people of their respective cities, etc.:^ KY. C. 6,13 ; Pa. C. 5,15; Md. C. 4,31; Mo. C. 6,13. In Louisiana, the judges of the New Orleans Court of Appeals are elected by the legislature in joint session : La. C. 128. The New Orleans District Court judges and the Shreveport recorder are appointed by the governor and confirmed by the senate: La. C. 130 and the City Court judges elected by the people : La. C. 135. Judges of Municipal Courts* are, in many states, elected by the people of their respective counties, cities, and towns : N.Y. C. 6,16 ; 111. C. 6,18 ; Neb. C. 6,18 ; Va. C. 6,14; W.Va. C. 8,2.3; Ky. In one, they are appointed by the executive : Me. C. 6,8. In many, judges of the County Courts are elected by the people of the county : Vt.* 796 ; Neb. C. 6,15 ; W.Va. ; Ark. C. 7,29; Tex. C. 5,15; Ore. C. 7,11 ; Col. C. 6,22. In others, they are appointed by the governor and confirmed by the senate : Ga.* 279 ; Fla. C. 6,9 ; D.C.* 1042 (i. e., by the President and Senate of the United States). Judges of the County Courts, Corporation, and Hustings Courts are. in one state, elected by the legislature in joint convention: Va. C 6,13. In one, the County Courts are composed each of a president elected by the people of the county and two justices of the peace : W.Va. C. 8,23-24. So, in one, of a presiding judge and two associates, elected by the people of the JUDGES. 127 county: Ky. C. 4,29-30. So, in Tennessee, of the magistrates of the county: Tenn.* 207. Judges of the inferior courts are chosen by the justices of the peace of each county : N.C.* 802. Justices of the Peace, or Trial Justices, are, in most states, elected by the people of their respective districts: Vt. C. Amt. 18; E.L C. 10,7; Ct. C. Amt. 10 ; KY. C. 6,18 ; N.J. C. 6,7 ; 7,2,8 ; Pa. C. 5,11 ; 0. C. 4,9 ; Ind. C. 7,14 ; 111. C. 6,21 ; Mich. C. 6,17 ;^ Wis. C. 7,15 ; lo.* 590 ; Minn. C. 6,8 ; Kan. C. 3,9 ; Neb. C. 6,18 ; Va. C. 7,2 ; W.Va. C. 8,27 ; Ky. C. 4,34 ; Tenn. C. 6,15 ; Mo.* 2807 ; Ark. C. 7,38 ; Tex. C. 5,18 ; Cal. C. 6,11; Ore.* 41,28; Nev. C. 6,8; CoL C. 14,11; S.C. C. 4,21; Ga. C. 6,7,3 ; Ala. C. 6,26; Miss. C. 6,23; La. C. 125; Wash.* 1689 ; Mon.* G. L. 462 ; Uta.* 262 ; Ariz.* 185 ; Territories, U.S. E. S. 1856. Except in Chicago, Illinois, they are appointed by the governor, upon advice of the senate and recommendation of the judges: lU. C. 6,28. In a few, they are appointed by the governor : N.H. ; Mass.* 155,7; Me.* 83,1 ; Md. C. 4,42 ; Del. C. 6,24 ; S.C.*-^ 797 ; Fla. C. 6,15. In one, they are elected by the legislature : N.C.* 819. In Columbia, they are appointed by the President of the United States, by and with the advice of the Senate: U.S. 1878, 162, § 1. Notes. — "Of the Court of Common Pleas. * Of the Circuit Court. '^ Of the Superior Court. <* Of the surrogate only. * See § 561, uote>^. ^ Of the Trial Justices. § 561. Judges: Term of Office. (See § 212.) (A) In some states, all judicial officers (except as below) hold office, by the Constitution, (1) for two years :" Neb. C. 6,20 ; (2) for four years : 111. C. 6,32 ; (3) for five years : 0. C. 4,10 ; (4) for seven years, or no longer: Me. C. 6,4; Minn. C. 6,9; (5) for eight years: Tenn. C. 6,4; (6) for ten years : Pa. C. 5,15 ; (7) for fifteen years: Md. C. 4,3. And in tliree states, (8) during life or good behavior: N.H. C. 1,35 ; 2,73 ; Mass. C. 1,29 ; 2,3,1 ; Del. C. 6,14. (B) Judges of the Court of Appeals hold office (1) for six years: N.J. C. 6,2,1 ; Tex. C. 5,5 ; (2) for eight years: La. C. 96 ; (3) for fourteen years : N.Y. C. 6,2. (C) Judges of the Supreme Court hold oftice (1) for two years: " Vt. C. Amt. 26 ; (2) in the territories, for four years: Territories, U.S. R. S. 1864 ; (3) for five years or such greater term as the legislature may provide: 0. C. 4,11 ; 1883, p. 383, § 2; (4) for six years : Ind. C. 7,2 ; lo. C. 5,3 ; Kan. C. 3,2 ; Neb. C. 6,4 ; Tex. C. 5,2 ; Ore. C. 7,3 ; Nev. C. 6,3 ; S.C. C. 4,2 ; Ga. C. 6,2,4 ; Ala. C. 6,15 ; (5) for seven years : N.J. C. 7,2,1 ; Minn. C. 6,3 ; (G) for eight years : Ct. C. Amt. 12 ; Mich. C. 6,2 ; N.C. C. 4,21 ; Ky. C. 4,3 ; Tenn. C. 6,3 ; Ark. C. 7,6 ; (7) for nine years : 111. C. 6,6 ; Col. C. 6,7 ; Miss. C. 6,3 ; (8) for ten years : Wis. C. Amt. 7,4 ; Mo. C. 6,4 ; (9) for twelve years : Va. C. 6,5 ; W.Va. C. 8,2 ; Cal. C. 6,3 ; La. C. 82 ; (10) for fourteen years : N.Y. C. 6,13 ; (11) for fifteen years : Md. C. 4,3 ; (12) for twenty-one years : Pa.* C. 5,2 ; (13) during life or good behavior : R.I. C. 10,4 ; Del C. 6,14 ; Fla. C. 6,3 ; D.C.* 750. (D) Judges of the Superior Courts hold office (1) for two years :" Vt.* 796 ; (2) for four years : lo. C. 5,5 ; Kan. C. 3,5 ; Neb. C. 6,10 ; Ark. C. 7,17 ; Tex. C. 5,7 ; Nev. C. 6,5 ; S.C. C. 4,13 ; Ga. C. 6,3,1 ; La. C. 109 ; (3) for five years ; N.J. C. 7,2,2 ; 0. C. 4,12 ; (4) for six years ; N.Y. C. 6,15 ; Ind. C. 7,9 ; 111. C. 6,12 ; Mich. C. <5,Q ; Wis. C. 7,7 ; Ky. C. 4,23 ; Mo. C. 6,25 ; Cab C. 6,6 ; Ore. C. 7,3 ; Col. C. 6,12 ; Ala. C. 6,15 ; Miss. C. 6,11 ; (5) for seven years : Minn. C. 6,4 ; (6) for eight years : Ct. C. Amt. 12 ; Va. C. 6,11 ; W.Va. C. 8,10 ; N.C. C. 4,21 ; Tenn. C. 6,4 ; Fla. C. 6,7 ; (7) for fifteen years : Md. ; (8) during good behavior : Del. C. 6,14. (E) Chancellors hold office (1) for six years :" Ky.* Civ. C. 775 ; Ala. C. 6,15 ; (2) for four years : Miss. C. 6,17 ; (3) for seven years : N.J. C. 7,2,1 ; (4) for eight years: Tenn. ; (5) during good behavior : Del. ; for other states, see § 560. (P) Judges of Probate hold office (1) for one year:" R.I.* 179,1-2 ; (2) for two years : Vt. C. Amt. 24,5 ; Ct. C. Amt. 21 ; Wis. C. 7,14 ; Minn. C. 6,7 ; Kan. C. 3,8 ; 128 THE SYSTEM OF JUDICATURE. Neb. C. 6,15; Ark. C. 7,34; S.C. C. 4,20; Wash.* 1297; Mon.* G. L. 382; Wy.* 28,2, 1 ; Uta.* 173 ; N.M.* 407 ; (3) for three years : 0. C. 4,7 ; Col. C. 6,22 ; (4) for four years : Me. C. 6,7; N.Y.*'' 1,5,4,10 ; 111. C. 6,20 ; Mich. C. 6,13 ; Md. C. 4,40 ; Mo.* 1177 ; Ga. C. 6,6,3 ; (5) for five years : N.J. C. 7,2,6 ; (6) for six years : N.Y. C. 6,15; Ala. C. 6,15; (7) duriug good behavior: Del. C. 6,14. For other states, see County Courts ; compare § 556. (G) Judges of the Special Courts^ hold office (1) for four years : Ct. C. Amt. 20. (2) They cannot hold office for a longer terra than five years : 0. C. 4,10. (3) They hold office twelve years : Mo. C. 6,13 ; (4) fourteen years : N.Y. C. 6,13. In Louisiaua, the judges of the local Courts of Appeals and District Courts hold office for eight years, and those of the City Courts, four years: La. C. 129,130,135. (H) Judges of the Municipal Courts ^ hold office (1) for four years : Me. C. 6,8 ; 111. C. 6,18 ; (2) for six years : Va. C. 6,14. Judges of the County Courts hold office (1) for two years: Ct. C. Amt. 20 ; Neb. C. 6,15 ; Ark. C. 7,29 ; Tex. C. 5,15 ; (2) for three years: Col. C. 6,22; (3) for four years : Ky. C. 4,30; Ore. C. 7,11; Fla. C.6,9; (4) for six years : Va. C. 6,13 ; W.Va. C. 8,23. (I) Justices of the Peace" hold office (1) for one year: Va.* 48,2; (2) for two years: Vt. C. Amt. 24,5; Ct.* 1876,11,1 ; Wis. C. 7,15; lo.* 590; Minn. C. 6,8 Kan. C. 3,9; Md. C. 4,42; Va. C. 7,2; Ark. C. 7,38; Tex. C. 5,18; Cal.* 10110 Ore.* 41,28; Nev.* 937; Col. C. 14,11; S.C. C. 4,21; Miss. C. 6,23; La.* 2044 Wash.* 1695 ; Mon.* G. L. 462 ; Ariz.* 187 ; (3) for three years : Mass.* ' 155,9 ; R.L* <= 196,4 ; 0. C. 4,9 ; D.C.* 994 ; (4) for four years : N.Y. C. 6,18 ; Ind. C. 7,14 ; 111. C. 7,28 ; Mich. C. 6,17 ; W.Va. C 8,27 ; Ky. C. 4,34 ; Mo.* 2807 ; Ga. C. 6,7,1 ; S. 435 ; Ala.* 754 ; Fla. C. 6,15 ; La. C. 125 ; D.C.* U.S. 1878,162, § 1 ; (5) for five years : N.H. C. 2,75; N.J. C. 7,2,8; Pa. C. 5,11; (6) for six years : N.C.*819; Tenn. C. 6,15; (7) for seven years ; Mass. C. 2,3,3 ; Me. C. &,b ; Del. C. 6,24; (8) for fifteen years : Md. All judicial officers hold office, in many states, until their successors are qualified : ' 111. C. 6,32 ; Wis. C. 7,7 ; lo. C. 5,3 and 5 ; Minn. C. 6,3 ; Kan. C. 3.12 ; Neb. C. 6, 20; Md. C. 4,3; Ky. C. 4,3 and 23 and 30; S.C. C. 4,2; Ga. C. 6,2,4; 6,3,1. See also § 212. Notes. — "■ Some statutory provisions of several states are also inserted in this section, in order to make the treatment of the subject complete. See § 550. * They are not ehgible for re-election. <^ Of trial justices ; see § 559, note ". '^ Of the surrogates. * The statutory provisions corresponding to this paragraph are omitted. § 562. Qualifications. (See also Arts. 4 and 22.) (A) In several states, the Con- stitution provides that a judge of the Supreme Court must (1) be thirty years of age : 111. C. 6,3; Neb. C. 6,7; Md."-'^ C. 4,2; W.Va.^ C. 4,4; Ky." C. 4,8; Mo.'^ C. 6,6 and 13 ; Ark. C. 7,6 ; Tex. C. 5,2 ; Col." C, 6,10 and 16 ; S.C. C. 4,10 ; Ga." C. 6,14,1 ; Miss. C. 6,6 ; (2) thirty-five years of age : Tenn. C. 6,3 ; La. C. 82 ; (3) twenty-five : Wis." C. 7,10 ; Ala. C. 6,14 ; Fla. C. 16,30. (B) And in many, that he must be a citizen of the United States : 111. ; Wis. ;" Neb. ; Ky. ; " Mo. ; ^ Ark. ; Tex. ; Ore. C. 7,2 ; Col. ; " S.C. ; Ala. ; La. ; of the State : Md. ; "• " Mo. ; Tex. ; Ga. ; Ala. ; La. (C) And in several, he must have resided in the state (1) two years: Ky.," Ark., Cal.,*" Col.," Miss ; (2) three years : Neb. ; Ore. ; Ga." Stats. 238 ; (3) five years : 111., Md.,"'-^ W.Va.," Tenn., Mo.,'' S.C, Ala. (d) In several, they " shall be learned in the law : " Minn. C. (Sfi ; Mo. ; ^ Ark. ; Col. ; * Ala. C. 6,14 ; La. In one, " they are to be selected fronn those who have been admitted to practise law, and who arc most distinguished for intogrity, law, and sound legal knowledge : " Md.''' "^ In one other, they must have held a judicial situation under the United States, or have practised law five years : Va. C. 6,5. In a few, they must have practised law or held a judicial position in a court JUDGES. 129 of record (1) for seven years : Tex., Ga. ; ^ (2) for eight years : Ky.,* Ark. ; (3) for ten years : La. In a few, they must have been admitted to practise in the Supreme Court of the state : Cal. C. 6,23 ; Fla. (E) In one state, they must be of good moral character : Ark. (F) In one other, by statute, they must not be officers in any raih'oad corporation in the state : Vt.* 780. (G) In many, they must reside in the circuit or district for which they are ap- pointed : Ind. C. 7,3 ; 111. C. 6,32 ; Wis. ;^ Minn.^ C. 6,4 ; Kan. C. 3,11 ; Neb. C. 6,20 ; Md. ;*■ '^ Del." C. 6,2 ; Ya." C. 6,11 ; W.Va." C. 8,10; N.C.* C. 4,11 ; Ky. ;'' Mo.* C. 6,26 ; Ark.'" C. 7,13 ; Ore. C. 7,2 ; S.C* C. 4,13 ; Ala.'- <= C. 6,4 and 7 ; Fla." C. 6,7 ; La.* Notes. — "Of the three associate judges. * Of the judges of the superior courts also. <^ Of the chancellors. '^ Of the judges of the special courts also. § 563. Judges : Retirement. In several states, no judge can hold office after he has attained the age of seventy years : N.H.« C. 2,78 ; Ct." C. 5,3 ; Amt. 12 ; N.Y. C. 6,13 ; Md. C. 4,3. But in one, he may be continued in office by the legislature, after the age of seventy, for such further time as they think fit, not exceeding his term of office : Md. Note. — « Of judges of the Supreme and Superior Courts only. § 564. Compensation. There are, in nearly all states, general constitutional provisions that judges shall receive a regular fixed compensation, but no other fees or perquisites : N.H.« C. 1,35 ; Mass." C. 1,29 ; 2,2,1,13 ; Me.° C. 6,2; 111." C. 10,6 ; KY. C. 6,14 and 21 ; Amt. 1869 ; N.J.^ C. 6,2,3 ; Pa. C. 5,18 ; 0."' C* 4,14 ; Ind.<^- * C. 7,13 ; 111.''' * C. 6,7 ; 6,16 ; Mich.* C. 6,9 ; Wis."- * C. 7,10 ; lo."-* C. 5,9 ; Minn.«- ' C. 6,6 ; Kan.«' * C. 3,13 ; Neb. C. 6,13-14 ; Md. C. 4,6 ; Del. C. 6,14 ; Va. C. 6,22 ; W.Va. C. 8,16 ; N.C. C. 4,18 ; Ky."- * C. 4,3; 4,25; Tenn. C. 6,7; Mo."'*-'^''^ C. 6,33; Ark."-* C. 7,10; 7,18; Tex.«'*'<^ C. 5,3 and 5 and 7 ; Cal."-'' C. 6,15 and 17; Nev."-* C. 6,15; Col.«>* C. 6,18; S.C.°' * C. 4,9 ; Ga. C. 6,13,1 ; Ala.«'* C. 6,10 ; Miss."' * C. 6,10 and 15 ; La.«' * C. 82,109. This compensation cannot, in many, be increased or diminished during their term of office : Me. ; 0. ; 111. ; Tenn.; Mo. ; Tex. ; CaL ; Nev.; Ga. C. 6,13,2; La. C. 114. In several, it cannot so be diminished : Me. ; R.I. ; N.Y. ; Ind. ; Minn. ; Md. C. 4,24 ; Va. ; N.C. ; Ky. ; Ark. ; S.C. ; Ala. ; Miss. In one, it cannot be so increased : Kan. Notes. — « Of judges of the Supreme Court. * Of the judges of the Court of Common Pleas or superior courts. <= Of the judges of the Court of Appeals. '^ Of judges of Probate Courts. § 565. Judges Interested. In many states, the Constitution prescribes that no judge can sit in a case (1) where he is interested : Md. C. 4,7 ; Del." C. 6,22 ; Tenn. C. 6,11 ; Ark. C. 7,20 ; Tex. C. 5,11 ; S.C. C. 4,6 ; Miss.* C. 6,9 ; or (2) where he is related to any of the parties by consanguinity : Md., Tenn., Ark., Tex., S.C., Miss.,* or by affinity : Md., Tenn., Ark., Tex., S.C, Miss.* Notes. — « Of Probate judges only. ^ Of Supreme Court judges only. § 566. Courts of Record." (a) The Court of Appeals is specially declared a court of record : N.Y.* Civ. C. 2 ; Md. C. 4,1 ; so, the supreme courts : N.Y. ; Pa.* Siipr. Ct. 1 ; Mich. C. 6,15 ; Wis.* 2397 ; Kan.* 27,1 ; Mo.* 1023 ; Ark.* 1458 ; Cal. C. 6,12 ; Ore. C. 7,1 ; Nev.* 946 ; S.C* 2091 ; Ida.* Civ. C. 18 ; Uta.* Civ. C 17; KM.* 93,4; the appellate courts: 111.* 37,18; the superior courts: N.Y.* ; Pa.* Com. Pleas, 1 ; Mich. ; Wis.* 2422 ; Md. ; Kan * 28,1 ; Mo.* ; Ark.* ; Cal. ; Ore. ; N"ev * ; S.C* Civ. C 32 ; Ida.* ; Uta.* ; N.M.* 27,3 ; the criminal courts : Ind.* 1366 ; the courts of oyer and terminer, etc. : N.Y.* ; Pa.* Quarter Sess. 1 ; the inferior courts : N.C* 802 ; police courts : Ark.* 821 ; the probate courts : KH.* 189,1 ; Mass.* 156,1 ; 157,1 ; Me.* 63,1 ; Vt.* 1774 ; 2015 ; KY.* ; 9 130 THE SYSTEM OF JUDICATURE. N.J.* Oiyh. Ct. 1 ; Pa* Orph. Ct. 4 ; 0. C. 4,7 ; Mich. ; Minn. C. 6,7 ; Kan. C- 3,8 ; Kan.* 29,1 ; Neb. C. 6,16 ; Md. ; Mo. C. 6,34; Ark.* ; Ore. ; Col. C. 6,23; S.C.* Civ. C. 35; Wash.* 1299; Ida.*; Wy. 28,2,2; Uta.*; Ariz.* 1518; so, the county courts : N.Y.* ; 111.* 37,89 ; Wis.* 2448 ; Neb. ; Ky.* 23,17,5 ; Mo. C. 6,36 ; Ark.* ; Tex. C. 5,15 ; Ore. ; Col. C. 6,24 ; Ga.* 282 ; Fla.* 51,3 ; the dis- trict courts : N.J.* Distr. Cts. 3 ; Pa.* Distr. Cts. 1 ; the justices of the peace courts: Md. ; Ky.* 28,18,2; the city courts: N.J.* 1879,84,29 ; Ind.* 3209; the courts of sessions: N.Y.* ; the commissioner of lands: Md.* 16,1; and all the special courts: N.Y.*; Ind.* 1353; Mich.* 6535,6564; Wis.* 2499 ; Mo.* ; Col* 1006 ; Ga.* 4880,4903. And the following courts are declared not of record : (1) justices of the peace : N.Y.* ; (2) police and municipal courts : KY.* (B) The police courts have a seal : 0.* 1786 ; Ark.* ; Cal* 10147 ; D.C.* 1056 ; so, the probate courts : Kan.* 29,2 ; Minn.* 49,1 ; Mon.* C. Civ. Pr. 510; Wy.* 94,2 ; Uta.* C. Civ. P. 65 ; KM.* 658; Ariz.* 2360 ; the chancery courts: Miss.* 2275; the superior courts: Mass.* 154,28 ; III* 37,37 ; Kan.* 28,8; Cal.*; Ore.* Civ. C. 894; Nev.* 960; Col.* Civ. C. 406; Wash.* 2126 Mon.*; Uta.*; Miss.*; KM.*; Ariz.*; the supreme courts: Mass.*; Cal.* Ore.*; Nev.* ; Col.*; Wash.*; Mon.*; Wy.* 106,11; Uta.*; Miss.* 1410 KM.* ; Ariz. ; the special superior courts : Me.* 77,70. All courts having a clerk have a seal: Ct.* 4,6,14; so, the city courts : KJ.* 1879,84,30 ; III* 37, 241 ; the common pleas courts : Pa.* Com. Pleas, 7 ; the quarter sessions : Pa.* Quart. Sess. 3 ; tlie county courts : III* 37,39 ; Tex.* 1177 ; Ore.* ; Col* All courts of record have a seal : Mo.* 1024. Note. — " Undoubtedly many courts are courts of record, though not expressly so declared by statute. The word is commoiily used in the United States to mean either a court with a seal, or a court whose records are "public" records, or evidence. It has been found impossible to make this section exhaustive. § 567. Judges Acting as Attorneys. The Constitutions of two states provide that no judge or justice of the peace shall act as attorney or be of counsel (1) in mat- ters which may come into his jurisdiction : N.H. C. 2,79 ; 2,81 ; (2) in any action : W.Va. C. 8,16 ; nor can he originate any civil suit in such matters : N.H. So, specially of judges and registers of probate : N.H. C. 2,81. And of clerks of courts : N.H. C. 2,82. And in many, no judge of any court of record can practise law or act as attorney in any court : N.Y. C. 6,21 ; Kan. C. 3,13 ; Neb. C. 6,U; W.Va. C. 8,16 ; Ark. C. 7,25 ; Cal. C. 6,22 : Col. C. 6,18 ; Ala. C. 6,20 ; nor as referee : N.Y. In others, no judge can sit in a case in which he has acted as counsel : Md. C. 4,7; Tenn. C. 6,11 ; Ark. C. 7,20; Tex. C. 5,11 ; S.C. C. 4,6. § 568. Appeals. In several states, there is a general provision that no judge shall sit at a general term (in banc) in review, or on appeal, of any decision made by him, or by any court of which he was at the time a sitting member: N.Y. C. 6,8; N.J." C. 6,2,5-6; 111.^ C. 6,11 ; Md." C. 4,15 ; W.Va.<^ C. 8,29 ; Ark. C. 7,20; Ore.'' C. 7,6 ; S.C. C. 4,6. Notes. — "Of the judges of the Court of Appeals, only. '> Of judges of appellate courts, only. ' Of judges of the Supreme Courts, onl}\ "^ Of judges of the County Court, only. Art. 58. Remedial Laws. § 580. Laws General. All laws relating to courts must, by a few of the Constitutions, be general and of uniform operation : Pa. C. 5,26 ; 111. C. 6,29 ; Neb. C. 6,19 ; Col C. 6,28 ; Ga. C. 6,9,1. PROCEDURE. 131 So, in several, the jurisdiction of all courts of the same grade or class, so fiir as regu- lated by law : Pa., 111., Neb,, Col., Ga. So, also, the practice of such courts : 111., Neb., Col., Ga. And the effect of their judgments, decrees, or process, shall be uniform : Pa., 111., Neb., Col., Ga. § 581. Arbitration. The Constitutions of several states provide tliat the legislature shall pass laws allowing parties to determine suits by arbitration : Ky. C. 8,10 ; Tex. C. 16,13 ; Col. C. 18,3 ; S.C. C. 5,1 ; Ala. C. 4,45 ; La. C. 1G5. So, in others, that the legislature may establish "courts of conciliation :" 0. C. 4,19; Ind. C. 7,19 ; Mich. C. 6,23 ; Wis. C. 7,10. So, in one, that they may refer suits to a practising lawyer as referee : Fla. C. 6,17. But such arbitrators, referees, or courts may not render final judgment, except upon submission by the parties and their agreement to abide such judgment : 0., Ind., Wis. § 582. Contempts. The Constitutions of two states provide that the power of the courts to punish for contempts shall be limited by the legislature: Ga. C. 1,1,20; La. C. 166. In one, that the legislature shall have power to regulate by law the punishment of contempts not committed in the presence or hearing of the courts, or in disobedience of process : Ark. C. 7,26. § 583. Attorneys. By the Constitution of Indiana, every person of good moral charac- ter, being a voter, shall be entitled to admission to practise in the courts : Ind. C. 7,21. § 584. Codes. (See also § 308.) The "Constitutions of a few states provide for codes of civil and criminal practice : 0. C. U,2 ; Ind. C. 7,20; Wis. C. 7,22 ; Ky. C. 8,22 ; S.C. C. 5,3. So, in three, for codes of the general laws : Ind. ; S.C. ; Ala. C. 4,46. Tlie Constitution of one state provides that no general revision of the laws sliall hereafter (1850) be made, and that, when a reprint is necessary, the legislature shall api)oint a suitable person to coUect such acts as are in force and arrange them without alteration : Mich. C. 18,15. But in several, the Constitution provides that there shall be a revision and digest every ten years : Mo. C. 4,41 (beginning with 1875) ; Tex. C. 3,43 (1879) ; S.c". C. 5,3 (1882); Ala. C. 4,46 (1876). § 585. Speedy Decisions. The Constitution of California provides that no judge of the Supreme or Superior Courts shall receive his salary until he make affidavit that no cause in his court remains undecided that has been submitted for decision for tlic period of ninety days: Cal. C. 6,24. So, in one other, such judges must file their decisions within sixty days after the end of the term at which the causes were heard : S.C. C. 4,17. And in Georgia, the Supreme Court must dispose of every case at the first or second term after the writ of error is brought : Ga. C. 6,2,6. Art. 60. Procedure. § 600. Forms of Action. In several states, the Constitution provides that there shall be but one form of civil action : 0. C. 14,2 ; N.C. C. 4,1 ; Nev. C. 6,14 ; S.C. C. 5,3. § 601. Equity. (See also § 555.) In several states, the Constitution provides tluit the legislature shall abolish the distinction between law and equity pro- ceedings : 6. C. 14,2 ; Mich. C. 6,5 ; N.C. C. 4,1 ; S.C. C. 5,3. So, in one other, law and equity may be administered in the same action: Nev. C. 6,14. And in Georgia, the legislature may confer (and has conferred) upon the Common Law Courts all the powers of Courts of Equity : Ga. C. 6,4,2. But in Iowa, the Constitution provides that the law and equity jurisdiction (though often vested in the same courts) shall be kept dis- tinct : lo. C. 5,6. In two states, the testimony in equity is to be taken in the same manner as at law : N.Y. C. 6,8; Wis. C. 7,19. 132 THE SYSTEM OF JUDICATURE. § 602. Feigned Issues are abolished by one State Constitution : N.C C. 4,1. § 603. Juries : Qualifications. (For religious qualifications, see § 45.) The Constitu- tion of Tennessee provides that no political test can be required for jurors : Tenn. C. 1,6. And that of Mississippi, that no property qualification can ever be required for jurors : Miss. C. 1,13. In New Hampshire, that great care should be taken that none but qualified persons should serve on juries, and that they should be fully compensated: N.H. C. 1,21. So, in Vermont, that great care should be taken to prevent corruption or partiality in the choice of juries : Vt. C. 2,31. § 604. Disqualifications. By the Constitutions of two states, no person can serve on a jury who is not a qualified elector of the state : Ya. C. 3,3 ; Fla. C. 4,23. And so, in others, the legislature are to pass laws excluding persons from serving on juries in the same cases iu which they are excluded from voting : Tex. C. 16,2 ; Cal. C. 20,11 ; Nev. C. 4,27. In detail, (1) all persons convicted of bribery are excluded from serving on juries : Tex., Nev., Fla., La.; (2) all persons convicted of treason : La.; (3) of perjury : Tex., Nev., Fla., La. ; (4) of forgery : Tex., Nev., Fla., La.; (5) of larceny : Nev., Fla.; (G) gen- erally, all persons convicted of infamous crimes : La. ; (7) of " other high crimes : " Tex., Nev., Fla. ; (8) all persons "under interdiction :" La. Unless they are restored to civil rights : Nev., Fla. § 605. Charging the Jury. Several State Constitutions provide that the judge shall not charge juries as to matter of fact : Tenn. C. 6,9 ; Ark. C. 7,23 ; Cal. C. 6,19 ; Nev. C. 6,12 ; S.C. C. 4,26. - But they may state the testimony and declare the law: Tenn., Cal., Nev., S.C. So, they shall declare the law : Ark. So, the judges of the Supreme Courts shall instruct the jury in the law : E.I. C. 10,3. § 606. Amendments are, by the Constitution of Delaware, to be allowed by the courts on such terms as they deem reasonable, iu civil cases : Del. C. 6,16. § 607. Witnesses : Parties, The Constitutions of two states provide that parties may be witnesses : lo. C. 1,4; Ark. C. Sched. 2. And in one, that parties may be compelled to testify by the opposing party : lo. § 608. Parties Deceased. But in one state, in actions by executors, administrators, and guardians iu which judgment may be rendered either for or against them, neither party shall be allowed to testify against the other as to any transactions with, or statements to, the intes- tate, testator, or ward, unless called to testify thereto by the opposite party or required by the court : Ark. C. Sched. 2. § 609. Depositions. The Constitution of Delaware provides that evidence of witnesses ao-ed or infirm, or about to leave tlie state, may be taken on interrogatories : Del. C. 6,16. So, that the courts shall have power to obtain evidence from without the state: Del. § 610. Limitations. In Alabama, the legislature has no power to revive any right or remedy which may have become barred by lapse of time or any statute : Ala. C. 4,56. In Wisconsin, no appropriation can be made for any claim against the state, except judg- ments, unless filed within six years after the claim accrued : Wis. C. Amt. 8,2. In Tennessee, the time between May 6, 1861, and Jan. 1, 1867, shall not be computed in any case afiected by the Statutes of Limitation, nor shall any writ of error be afl"ected by such lapse of time: Tenn. C. Sched. 4. So, in Florida, as to civil suits, the time between Jan. 10, 1861, and Oct. 25, 1865 : Fla. C. 15,3. § 611. Payment into Court may, by the Constitution of Delaware, be made by the de- fendant at any time pending an action for debt or damages ; and the plaintiff not accepting thereof shall recover no costs, if he recover no greater sum on the final decision : Del. C 6,17. § 612. Abatement. The Constitution of Delaware provides that no action of which the cause survives shall abate by the death of a party : Del. C 6,18. AMENDMENTS TO THE CONSTITUTION. 133 CHAPTER VI. GENERAL PROVISIONS. Art. 99. Amendments to the Constitution. § 990. (a) How Proposed in the Legislature. Amendments to the Constitution may, in most states, be proposed in either house : Mass. C. Amt. 9 ; N.Y. C. 13,1 ; N.J. C. Art. 9; Pa. C. 18,1; 0. C. 16,1 ; Ind. C. 16,1 ; 111. C. 14,2; Mich. C. 20,1 ; Wis. C. 12,1 ; lo. C. 10,1 ; Kan. C. 14,1 ; Md. C. 14,1 ; Va. C. 12,1 ; W.Va. C. 14,2 ; Tenn. C. 11,3 ; Ark. C. 19,22 ; Cal. C. 18,1 ; Ore. C. 17,1 ; Nev. C. 16,1 ; Col. C. 19,2 ; S.C. C. 15,1 ; Ga. C. 13,1,1 ; Fla. C. 17,1. But in one, they can only be proposed in the senate, and only on every tenth year, be- ginning with ]880 : Vt. C Amt. 25,1. In one other, they can only be proposed in the house : Ct. C. Art. 11. (B) They must be ratified (1) by a majority of the members present in each house : Minn. C. 14,1 ; Mo. C. 15,1-2 (elected) ; Ark. (elected) ; (2) by three fifths of the elected members of each house : 0. ; Neb. C. 15,1 : Md. C. 14,1 ; N.C. C. 13,2 ; (3) by two thirds of a quorum of each house : Me. C. 10,2 ; Ala. C. 17,1 ; Miss. C. Art. 13 ; (4) by two thirds of the elected members of each house : 111. ; Mich. ; Kan. ; W.Va. ; Tex. C. 17,1 ; Cal. C. 18,1 ; Col. ; S.C. C. 15,1 ; Ga. ; La. C. 256 ; (5) by a majority of the elected members of each house of two successive legislatures : R.I. C. 13,1 ; N.Y. ; N.J. ; Pa. ; Ind. ; Wis. ; lo. ; Va. ; Ore. C. 17,1 ; Nev. C. 16,1 ; (6) by a majority of the senators and two thirds of the representatives, present and voting thereon, of two successive legislatures: Mass. C. Amt. 9; (7) by a majority of the elected members of each house and two thirds of the members of each house of the next succeeding legislature : Tenn. C. 11,3 ; (8) by three fifths of the first legislature ami two thirds of the ne.xt, as in Tennessee : N.C. C. 13,2 ; (9) by two thirds of the first legislatui'e, and three fourths of the next: Del. C. Art. 9 ; (10) by two thirds of each elected house of two successive legislatures: Fla. C. 17,1 ; (11) by two thirds of the elected senators and a majority of the elected members of the house, in the legislatux'e proposing them, and by a majority of the elected members of each house of the next legislature : Vt. (12) After being proposed as above, they are to be published and must be ratified by two thirds of each house at the next legislature : Ct. § 991. Ratification by the People. In most states, the proposed amendment, haviug passed the legislature according to § 990, must tlien be ratified (A) by a majority vote of the people at the next election : Mass., Me., Vt., Ct, N. Y., N. J., Pa., 0., Ind., in., Mich.,V^is., lo., Minn., Kan., Neb., Md.,Va., W.Va., N.C, Tenn., Mo., Ark., Tex., Cal., Ore., Nov., Col., S C, Ga., Ala, Miss., Fla., La. (b) By a three-fifths vote at such election : P.I. For citations, see § 990. § 992. Ratification by the Legislature. And in one state, the proposed amendment, having passed both the legislature and the people according to §$ 9U0, 991, must again be ratified by two thirds of the elected members of each house of the next legislature after the election by the people ratifying it : S.C. § 993. Restrictions. In two, the legislature cannot propose amendments to more than one article in any one session : 111., Col. ; nor to the same article oftener than 134 GENERAL PROVISIONS. once in four years : 111. Amendments cannot be submitted to the people oftener than (1) once in five years : N.J., Pa. ; (2) once in six years : Tenn. In Kansas and Ar- kansas, not more than three can be so submitted at the same election. If two or more are submitted at the same time, the electors must be permitted to vote on each sepa- rately : N.J.; Pa.; 0.; Ind. C. 16,2; Wis.; lo. C. 10,2; Minn.; Kan.; Neb.; Md. ; W.Va. ; S.C. C. 15,2; Ga. C. 13,1,1; La. While an amendment approved by one legislature is awaiting the action of the next, no other can be proposed : Ind. § 994. General Revision. There is, in most states, provision for a general re- vision of the Constitution by a convention called for that purpose. Thus, when- ever two thirds (or, in New Hampshire, New York, Michigan, Wisconsin, Iowa, Delaware, "West Virginia, Kentucky, Tennessee, Missouri, Alabama, Florida," a majority ; and in Nebraska, three fifths) of the elected members of each house of the legislature vote that such convention is necessary, the question is referred to the people ; if they vote at the next election* for the convention, the legisla- ture is to provide for holding the same : N.H. C. 2,99 ; Me.^ C. 4,3,15 ; N.Y. C. 13.2 ; 0. C. 16,2 ; 111. C. 14,1 ; Mich. C. 20,2 ; Wis. C. 12,2 ; lo. C. 10,3 ; Minn. C. 14,2 ; Kan. C. 14,2 ; Neb. C. 15,2 ; Del. C. Art. 9 ; W.Va. C. 14,1 ; N.C. C. 13,1 ; Ky." C. 12,1 ; Tenn. ; Mo. C. 15,3 ; Cal. C. 18,2 ; Nev. C. 16,2 ; Col. C. 19,1 ; S.C. C. 15,3 ; Ga. C. 13,1,2 ; Ala. C. 17,2 ; Fla." C. 17,2. And in some, the question of holding such a convention is regularly submitted to the people at stated times, at a general election ; as, every ten years, beginning with 1870 : lo. ; every twenty years, beginning (1) with 18G6 : N.Y. ; (2) with 1871 : 0. C. 16.3 ; with 1887 : Md. C. 14,2 ; with 1888 : Va. C. 12,2 ; every sixteen years, begin- ning with 1866 : Mich.; every seven years : N.H. C. 2,99,100 (beginning 1884), The delegates to such constitutional convention are, in all these states, to be elected by the people. Notes. — « By a majority of tivo successive houses. * The people must so vote in two successive elections. <^ By a two-thirds concurrent vote of [the members present of] both houses. § 995. Ratification. The Constitution, as so amended by the convention, must then be ratified by the people (1) at a general election : 0. ; Neb. ; Md. ; W.Va. C, 14,1 ; (2) at a special election called for the purpose : 111., Mo., Cal., Col. § 996. Amendments to the United States Constitution mny not, by the Constitution of Tennessee, be ratified by any ccjnvcntion or assembly (legislature) of the State which was not elected after such amendment was submitted : Tenn. C. 2,32. PART II. PRIVATE CIVIL LAW. DIVISION I.— NORMAL LAW. TITLE I. — PEELIMINARY AND GENERAL PROVISIONS. CHAPTER L — OF LAWS AND THEIR INTERPRETATION. Note to the Chapter. * These provisions apply to the interpretations of all other instruments or contracts, as well as statutes, in the noted states, t These provisions apply only to constructions of the code (or code of civil procedure, where there is no general code), and are contained therein. J These only to constructions of the code of criminal procedure. 1| These only to that of the criminal or penal code. Art. 100. Of Laws. § 1000. Definitions. Law is defined to be a solemn expression (1) of the will of the supreme power of the State : Cal. 44G6 ; (2) of legislative will : La. 1. (3) Law is a rule of property and of conduct prescribed by the sovereign power : Dak. Civ. C. 2. The common law is divided into (1) public law, or the law of nations; (2) domestic or municipal law : Dak. Civ. C. 4. Laws are obhgatory upon all inhabitants of the state indiscriminately (see also $$ 11>17) : La. 9. § 1001. Language and Form of Proceedings. The laws of several states prescribe that all writs, processes, proceedings, and records in any court (except, in Wisconsin and Arkansas., technical terms) shall bo in the English language : N.H. 222,1 ; Vt. G91 ; N.Y. Civ. C. 22; N.J. Amendts. 17; Mich. 7251 ; Wis. 2578 ; Ky. Civ. C. 115 ; Mo. 1035 ; Ark. 1466 ; Cal. 10185 ; Ore. Civ. C. 909 ; Col. Civ. C. 405 ; Ida. Civ. C. 70 ; Mon. C. Civ. P. 509 ; Uta. Civ. C. 91. All acts or contracts in the French language are valid in Louisiana : D. 1522. They must be on either paper or parchment : N.Y., N.J., Mich., Wis., Mo., Ark. But in a few states, provision is made for the publication of laws (and of legal notices : N.J.) in newspapers printed (1) in the German language : N.J. Statutes, 44 ; Sale of Land^, 71 ; Md. 1882, 25L (2) In New Mexico, court records are kept in English and Spanish ; and both may be taught in the schools : N.M. 1110 ; G. L. 1880,93,4. The language in which the law was originally passed governs: N.M. 2615. § 1002. Of Rights. The code of Dakota declares that all original civil rights are either (1) riglits of person or (2) rights of property : Dak. Civ. C 7. And that all rights may be surrendered or lost by neglect in the cases provided by law : Dak. Civ. C. 8. § 1003. The Common Law" of England, SO far as applicable, and not incon- sistent with the Constitutiou and laws of the United States or the State, is, in 136 OF LAWS AND THEIR INTERPRETATION. many states, adopted and declared to be in force : Vt.'' 689 ; Pa. Acts, etc., 1 and 3; Ind.236; Ill.<^ 28,1 ; Kan.* 119,3; Neb. 1,15,1; Va. 15,1; W.Va. 1882,143,5; N.C. 641 ; Mo. 3117 ; Ark.'^ 566 ; Tex. 3128 ; P. C. 4 ; C. Cr. P. 27 ; Cal. 4468 ; Nev. 1883,1 ; Col.<^ 197; S.C. 2738 ; Fla.^ 138,7; 83,1 ; La.f D. 976 ; Wash. || 1 ; Ida. 1874-5, p. 676 ; Mon.^ G. L. 144; Wy.'^ 26,1 ; N.M. 1823 ; Ariz.* 3438 ; 1885,68. Unless repealed (1) by legislative authority : Pa., 111., Kan., Va., N.C., Ark., Tex., CoL, Mod., Wy. ; (2) by judicial decision : Kan., \Vy. But only as a rule of construction in the penal code : Tex. P. C. 3; Dak. C. Cr. P. 610; and no act is punishable unless made a penal offence by the state statutes : <* Tex. In a few, there is declared to be no common law in any case where the law is de- clared by the codes : '^ Fla.|| 138,7 ; Dak. Civ. C. 6. In Wyoming, " if a case ever arise in which an action for the enforcement of a right or redress or prevention of a wrong cannot he had under the code, the practice of the common law may be adopted, so far as may be necessary to prevent a failure of justice: " '^ Wy. Civ. C. G44. In Kentucky, the decisions of the English courts since July 4, 1776, are not of bind- ing authority, but may be read in court and have such weight as the judges think proper to give them: Ky. 67,1. In some states, crimes and misdemeanors not provided for by State statute may be punished as under the common law or statute law of England as in force in the State under this section and $ 1004 ; but the punishment in such cases may not exceed a limited fine, or imprisonment.'* Notes. — " See also Part I. § 76. ' As to such of the common law as is adapted to the condition and wants of the people. '^ As to such of the common law as is general, and not of a local nature. <* See also in Part V. § 1004. The English Statutes made in aid of the common law are in the same way made part of the State law, (1) if enacted prior to the fourth year of James I, : Ind. 236; III 28,1; Va. 15,2; W.Va. 1882,143,6; Mo. 3117; Ark." 566 ; Coh 197; Wj. 26,1. (2) So, in two states, all statutes introduced before the Declaration of Independence (which, in Rhode Island, have continued to be practised under) : R.I. 259,3; Fla. 138,7. (3) All English and colony statutes in force on May 10, 1776, not since repealed : Pa. Acts, etc. 1. Except the second section of C. 6, 43 Eliz. ; C. 8, 13 Eliz. ; and C. 9, 37 H. VIII. ; Ind., Ilk, CoL But in New York, it is expressly provided that none of the English statutes are to be con- sidered as laws of the state : N.Y. 1828,21,3. Note. — " See § 1003. § 1005. "Waiver of Laws. By the codes of a few states, laws made for the preser- vation of public order or good morals cannot be abrogated by agreement ; but a person may waive or renounce what the law has established in his favor when he does not thereby injure others or affect the public interest : Cal. 8513,8268; Ga. 10 ; La. II ; Dak. Civ. C. 2066. § 1006. Old Laws in Force. In New York, no colony laws are in force : N.Y. 1828,21,4. In New Mexico, the laws of descent, distribution, and wills contained in the treatises of Pedro Murillo de Lorde remain in force so far as consistent with the United States Constitution and the state laws: N.M. 2,1. § 1007. Conflict of Laws. Several state codes provide that the validity, form, and etfect of all writings or contracts are determined by the laws of the place where executed: Ga. 8 ; Ore. Civ. C. 683; Mon. C. Civ. Pr. 611 ; La. 10. But if such waiting, etc., is intended to have effect in the home State, it must he executed in conformity with the laws of such State wherever made ; except wills of personal property made by persons domiciled out of the state : " Ga., La. ; or donatio causa mortis made by such persons : La. See also in Title VI. When tlie general y)ublic law and the local law for a county, city, etc., are in conflict, the latter prevails : Md. 1,10. Note. — « See also §§ 2653,2657. . CONSTRUCTION OF STATUTES. 137 § 1008. Comity of States. The Georgia code enacts that the laws of other states and foreign uulions shall have no force and eflect of themselves within the home state, except as is provided by the United States Constitution, or recognized by the comity of states ; and the courts are to enforce this comity so long as its enforcement is not contrary to the policy or preju- dicial to the interests of the State : Ga. 9. § 1009. Customs. Two codes provide that the customs of any business or trade shall be binding (shall be " usage: " Dak.) only when it is of such universal practice as to justify the conclusion that it became by implication part of the contract: Ga. 1 ; Dak. Civ. C. 2119. Customs result from a long series of actions constantly repeated, which have by such repe- tition, and by uninterrupted acquiescence, acquired the force of a tacit and common consent : La. 3. § 1010. Laws of other States in Force are, where not specially repealed, in the Dis- trict of Columbia (1) those of Maryland existing Feb. 27, 1801 : D.C. 92; (2) the Constitution and laws of the United States, where not locally inapplicable : D.C. 93. In West V'irgiuia, land titles and interests derived under Virginia laws prior to June 20, 1863, remain valid and are determined by the Virginia laws in force on that day : W.Va. 111,1. Art. 102. Construction of Statutes. (See Glossary. For notes, see note to the section.) § 1020. Meaning of "Words. In many States it is provided that all words and phrases shall be construed according to their common and ordinary accepta- tion and meaning ; but technical words and phrases according to their technical meaning : KH. 1,2 ; Mass. 3,3 ; Me. 1,6 ; Ct. 22,7; Ind. 240 ; Mich. 2 ; Wis. 4971 ; lo. 45 ; Minn. 4,1 ; Kan. 104,1 ; Del. 5,1 ; Ky. 21,17 ; Mo. 3126 ; Tex. 3138 ; P. C. 10 ; C. Cr. Pr. 59 ; Cal. 16 and 5013 and 10016; Col. 3141 ; Ga. 4 ; iMiss. 10 ; La. 14-15 ; 1946-7 ; Dak. Civ. C. 2097 ; C. Civ. P. 7 ; Ida. Civ. C. 12 ; Mon. G. L. 145 ; Wy. Civ. C. 653 ; Uta. Civ. C. 12 ; N.M. 1851 ; Ariz. 3. Words are always to be construed according to their context, despite the pro- visions of tliis article : N.H. 1,1 ; Yt. 1 ; E.I. 24,1 ; N.Y.f Civ. C. 3.343 ; 0. 4947 j Ind. 240 ; 111. 131,1 ; lo. ; Minn. ; Kan. ; Del. ; N.C. 3765 ; Mo. 3125 ; Ark 6338, 6345 ; Cal. 5014 ; Col. ; La. 16,1948 ; Ida. ; Mon. G. L. 151 ; Uta. ; KM. But so only when the words themselves are dubious : La. 16. Laws in pari materia must be construed with reference to each other : La. 17. Abstracts of titles and chapters and marginal notes are no part of the law : Me. For the effect of recitals in statutes as evidence, see in Part IV. § 1021. Liberal Construction. In many states, the code or revision provides that its provisions shall be liberally construed, to promote its objects : 0. || 4948 ; Ind. 1288 ; 241 ; 111. 131,1 ; lo.f 2528 ; Kan. 80,2 ; 119,3 ; Neb.f 2,1 ; Ky. 21,16 ; Ark. 6337 ; Tex. p. 718, § 3 ; C. Cr. P. 26 ; Cal. 4 and 5004 and 10004 ; Ore.|l Cr. C. 787 ; Col. 3143 ; Civ. C. 445 ; Wash. 758,1686 ; Dak. Civ. C. 2129 ; C. Cr. P. 602 ; P. C. 10 ; Ida. Civ. C. 3 ; Mon. G. L. 147 ; Wy. Civ. C. 2 ; Uta. C. Civ. P 3 ; C. L. 1834. The rule of the common law that statutes in derogation thereof are to be con- strued strictly does not, in many, apply : N.Y.f Civ. C. 3345 ; 0. ; lo.f ; Kan. ; Neb. II; Ky. 21,16; Civ. C. 733 ; Ark. 6362; Cal.; Ore.!]; Col. Civ. C. 446 ; S.C.f Civ. C. 448 ; AYash. ; Dak. Civ. C. 2129 ; C. Civ. P. 3 ; Ida. ; AYy. ; Uta. But it seems it does apply in one state : Pa. Acts, etc. 5. All statutes are to be construed with a view to carry out the intention of the legislature : N.H. 1,1 ; Yt. 1 ; RI. 24,1 ; Ind. 240 ; 111. ; Mich. 2 ; Wis. 4971 ; lo. 138 OF LAWS AND THEIR INTERPRETATION. 45; Minn. 4,1; Kan. 104,1; Del. 5,2; KG. 3765; Ky. 21,15; Mo. 3126; Ark.; Tex. 3138 ; Cal. 11859 ; Ore. Civ. C. 685 ; Col. ; Men. ; Ga. 4 ; La. 18 ; Ariz. 3. *' Keepin"- always in view (1) the old law, the evil, and the remedy : " Tex., Ga.* ; (2) " the reason and spirit of it, and the cause fur which it was enacted : " La. There is no distinction in the coustruction of statutes between civil, criminal, and penal enactments: Ky. 21,15; Tex. P. C. 9. A substantial compliance with the laws is sufficient ; and no proceeding is to be held void for want thereof unless so provided expressly in the statute (see also § 1045) : Ga. § 1022. Ambiguities and Contradictions. Clerical and typographical errors are to be disregarded when the intent and meaning are obvious : Minn. 4,1. ' Grammatical errors do not vitiate a law : Tex. 3139 ; Ga. 4. In no place shall punctuation control interpretation : Tex. Nor, it seems, shall " niceties of grammar" be attended to : La. 14,1946. Transposition of words and clauses may be resorted to when the sentence is with- out meaning as it stands : Tex., Ga. In the construction of a statute, the office of a judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted or omit what has been inserted : Cal. 11858; Ore.* Civ. C. 684 ; Mon.* C. Civ. P. 612. When there are several provisions or particulars, such construction, if possible, is to be adopted as will give effect to all : Cal. 8541 ; Ore.* ; Dak. Civ. C. 2094 ; Mon.* When a law is clear and free from ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit : La. 13. When a general and a particular provision are inconsistent, the latter is paramount ; so, a particular intent must control a general one which is inconsistent with it : Tex. || P.C. 5 ; Gal 11859 ; Ore.* Civ. C. 685 ; Mon.* G. Civ. P. 613. When a statute is equally susceptible of two interpretations, one in favor of natural right and the other against, the former prevails : Cal* 11866 ; Ore.* Civ. C. 692 ; Mon.* C. Civ. P. 620. A penal law so indefinitely framed or doubtful as not to be understood, either by itself or in connection with other laws, is inoperative : Tex. P. C. 6. So, in California, if the provisions of any title, chapter, article, coniiict with those of another title, etc., respectively, the pro- visions of each title, etc., prevail as to matters arising out of the subject-matter of such title, etc. : Cal. 4481-3. If conflicting provisions are found in diff'erent sections of the same chapter or article, the last section prevails unless such a construction would be inconsistent : Cal. 4484. So, in New York, in all cases of conflicting provisions in any part of the revision : N. Y. 1828.20,12. When, to prevent fraud, or from any other motives of public good, the law declares certain acts void, its provisions are not to be dispensed with on the ground that the particular act in question has been proved not to be fraudulent, etc. : La. 19. The distinction of laws into odious and those entitled to fiivor, with a view of narrowing or extending their construction, cannot be made by those wliose duty it is to interpret them : La. 20. In all civil matters, where there is no express law, the judge is bound to proceed and decide according to equity ; an appeal is to be made to natural law and reason or received usages, where positive law is silent : La. 21. § 1023. Special Phrases. The present tense inclndcs the future: ISr.Y.|| C. Cr. P. 955 ; 0. 23,4947 ; 111. 131,1 ; Wis. 4971 ; Ky.f Civ. G. 632 ; Tenn.f 48 ; Ark. 6344 ; Tex. 3138 ; Cal. 17,5014,10017 ; S.G. 35 ; Ga. 4; Ala. 1 ; Gol.f Civ. G.413; Dak. Giv.G. 2126; G. Gr.Pr. 604; Ida. Giv. G. 13 ; Mon. G. Giv. P. 521 ; Uta. G. Giv. P. 13 ; G. L. 5 and 1836 ; Ariz.f 3076. So, in all these states except Ohio, Illinois, Califoniia, Idaho, and Montana, the past tense may include the future, but not generally in the criminal code. CONSTRUCTION OF STATUTES. 130 In nearly all, the masculine gender includes tlie feminine and neuter : N.H. 1,3; Mass. 3,3; Me. 1,6; Vt. 2 ; IM. 124,2; Ct. 22,9; N.Y. 1828,20,11; C. Cr. P. 955 ; KJ. Practice, 300 ; Stats. 9 ; Pa. || Crimes, 304 ; 0. 23,4947 5913 • Ind. 241,1286 ; 111. ; Mich. 2 ; AVis. 4971 ; lo. 45 ; Minn. 4,1 ; Kan. 104,1 ; Md. 1,6 ; Del. 5,1 ; Va. 15,9 ; W.Va. 1882,143,17 ; N.C. 3765 ; Ky. 21,12 ; Tenn.f ; Mo. 3124 ; Ark. 6336 ; Tex. 3138 ; P. C. 23 ; Cal. ; Ore. || Cr. C. 783 ; Col. 3141 ; Wash. 1339,756,965; Dak. Civ. C. 2124; C. Cr. P. 604; Ida.; Mon. G. L. 145 and 150 ; Wy. Civ. C. 647-9 ; Uta. ; S.C. ; Ga. ; Ala. ; Miss. 16 ; La.f 3556 ; N.M. 1851,2614 ; Ariz. 3. In nearly all, the plural includes the singular, and the singular the plural : KH. ;Mass.; Me.; Vt. ; RI. 24,3 ; Ct. ; N.Y. ; N. J. ; Pa. jj ; 0.; Ind.; 111.; Mich.; Wis.; lo. ; Minn.; Kan.; Md. 1,7 ; Del.; Va. ; W.Va.; N.C. ; Ky. ; Mo. 3123-4 ; Ark. 6335 ; Tex. ; Cal. ; Ore. || Cr. C. 782 ; Col. ; Wash. 1339,1920 ; Dak. Civ. C. 2125 ; C. Cr. P. 604; Ida.; Men.; Wy. Civ. C. 649; Uta.; S.C; Ga. ; Ala. ; Miss. 11 ; La.f ; KM. ; Ariz. Man and woman include male or female persons of any age : Wy. Said or such refers to the person or thing last mentioned : N.H. 1,13 ; Vt. 15. Roman and Arabic numerals are, in a few, declared part of the Euglish language : lo. ; Kan. ; Teun. 51 ; Mo. 312G ; Col. Civ. C. 405. And are always sufficient to express dates and amounts unless otherwise directed by statute; KY. Civ. C. 22 ; ':^J. Amendts. \1 ; Wis. 2578; Tenn. ; Ark. 1154; Cal. 10186 ; Ore. 909 ; Ida. Civ. C. 71 ; Ga. 5 ; Mon. C. Civ. P. 509. Heretofore and hereafter in statutes mean any time previous or subsequent to the day the act takes effect: N.Y.f Civ. C. 3343 ; 111. ; Wis. ; lo.f 53 ; Mo. 3121 ; Mon. p. L. 149. Preceding (and, in Georgia, aforesaid) and following or succeeding mean the next preceding or following : KH. 1,12 ; Mass. ; Me. ; Vt. 15 ; E.I. 24, 20 ; Ct. ; Ind. 240 ; Mich. 2 ; Minn. 4,1 ; Wis. ; Va. ; W.Va. ; N.C. ; Ky. 21,19; Mo. 3122 ; Tex. 3140 ; Ga. 5 ; Ala. 5 ; Ariz. The terms sheriff, constable, coroner, or other words used for an executive or minis- terial officer include deputies or agents, general or special: 111, 131,1 ; lo. ; Kan.; Tenn. 53 ; Ark. 5632. So, in many, when a statute requires an act to be done, it may be done (if the law of the case permit agency) by an agent or deputy : Me. 1,6 ; O.f 4949 ; Ind. 240 ; Wis. ; Kan.f 80,720; Neb.f 2,893 ; W.Va. 1882,143,16 ; Ky.f 678 ; Mo. 3126 ; Ark.f 6365 ; Cal 865 ; Wash. 755 ; Wy.f Civ. C. 631. And may be read or, and or, and : 0. 23,4947. Words importing joint authority to three or more (in Rhode Island, Connecti- cut, New York, West Virginia, Texas, and Georgia, two or more) persons are construed as giving it to a majoritv of such persons, unless expressed otherwise : KH. 1,14; Mass. ; Me. ; Vt. 3 ; RI. 24,4 ; Ct. ; KY. 3,8,17,27 ; Ind. ; 111. ; ]\Iich. ; Wis. ; lo. ; Minn. ; Kan. ; Va. ; W.Va. ; N.C. ; Ky. 21,3 ; Civ. C. 679 ; Tenn. 56 ; Mo. 3126 ; Ark. 6366 ; Tex. 3138 ; Cal. 15,5012,10015 ; Ore. Civ. C. 509 ; Dak. Civ. C. 2131 ; Ida. Civ. C. 11 ; Uta. C. Civ. P. 11 ; Ga. ; Ala. 3 ; KM. ; Ariz. By year and month is understood a calendar year or month : KH. 1,8 ; Mass. 3,3 ; Me. ; Vt. 12 ; Pt.I. 24,11 ; Ct. ; l^.Y. 19,1,3 and 4 ; KJ. Stats. 10 ; Ind. ; 111. ; Mich.; Wis.; lo. ; Mimi. ; Kan.; Del; Va. ; W.Va. 1882,143,14; KC. ; Ky. 21,7; Civ. C. 732; Tenn. 50; Mo. 3126; Ark. 6359; Tex.; Cal. 5014; Col.; Wash. 759; Dak. 2123; Ida. ; Mom ; Ga. 5 ; Ala. 8 ; Miss. 12; Uta.; Ariz. Year, simply, means "year of our Lord:" N.H., Mass., Me., Vt., Ind., III., Mich., Wis., lo., Minn., Kan., Del., W.Va., N.C, Ky., Mo. 140 OF LAWS AND THEIR INTERPRETATION. lu every leap year, the iucreasiog day and the day before shall, in all legal proceedings, be counted as one day : N.Y., N.C. Fractious of a day are disregarded : Dak. Where any person's signature is required his mark is sufficient if he cannot write : Mass. 3,3 ; Me. 1,6 ; N.Y. || C. Crim. P. 958 ; lud. ; 111. ; Mich. ; Wis. ; lo. ; Minn.; Kan.; Del.; N.C; Ky.f Civ. C. 732; Tenn.f ; Mo.; Ark.f 6344; Tex. P. C. 31 ; 3140 ; Cal. ; Nev. 319,2294 ; Col. ; Dak. Civ. C. 2126 ; C. Cr. Pr. 607 ; Ida. 1874-5, p. 796,1 ; Civ. C. 13 ; Mon. G. L. 1169 ; Wy. Civ. C. 652 ; Uta. ; Ga. ; Ala. 1 ; N.M. ; Ariz.f ; his name being written near it by a person who signs his own name as witness : KY. || ; Ky.f ; Tenn.f ; Ark.f ; Tex. ; Cal. ; Nev. ; Col. Civ. C. 413 ; Dak. ; Ala. ; Ida. ; Mon. ; Wy. ; Uta. ; Ariz.f The signature must be at the end of the document signed : Ky. 21,26. Except in signatures (where a person must sign by his mark or his proper handwritimi;), writing includes printing, engraving, lithography, etc. : N.H. 1,22 Mass. ; Me^; Vt. 20 ; E.I. 24,20 ; N.Y. |1 C. Cr. P. 956 ; 0. || 6794 ; Ind. ; 111. Mich.; Wis. ; lo. ; Minn. ; Kan. ; Del. ; Va. ; W.Va. ; N.C. ; Ky.f ; Tenn.f ; Mo. Ark.f 6344 ; Tex. 3140 ; Cal. ; Ore || Cr. C. 778-9 ; Col. ; Dak. Civ. C. 2128 ; C. Cr. P. 605 ; Ida. ; Mon. ; Wy. Civ. C. 651 ; Uta. ; Ga. 5 ; Ala. ; N.M. ; Ariz. So, in New York, a document required to be 2)artly written or printed may in part be both : N.Y.f Civ. C. 3343. A person entitled to the execution of a writing may demand it made in ink, but otherwise writing made in any manner is valid : Dak. Civ. C. 2128. Sweai' includes affirm, and oath, affirmation: N.H. 1,23 ; Mass. 3,3 ; Me. ; Yt. 13; E.I. 24,10; Ct. ; N.Y. || C. Cr. P. 957; N.J. Stats. 11; 0. 1 ; Ind. 1285; Ilk; Mich.; Wis.; lo. ; Minn. ; Kan. 80,721 ; 104,1 ; Neb.f 2,894; Md. 1,8; Del ; Va. ; W.Va. 1882,143,11 ; N.C. ; Ky. 21,6 ; Civ. C. 680 ; Tenn.f ; Ark. 6358 ; Tex. ; Cak ; Nev. || 2293 ; Cok; Dak. Civ. C. 2126 ; C. Cr. Pr. 606 ; Ida. ; Mon. ; Wy.f Civ. C. 632 and 651 ; Uta. ; Ga. 5 ; Ala. ; N.M. ; Ariz. See Part IV. The time within which an act is to be done is computed by excluding the first .day and including the last (or in Idaho and Utah, if the last be Sunday [or a holiday] it shall also be excluded) : N.H. 1,32 ; Vt. 26 ; E.I. 24,12 ; N.Y. Civ. C. 788 ; Pa. 1883.122 ; O.f 4951 ; Ind. 1280 ; 111. ; Wis.; lo. ; Minn. 66,82 ; Kan.f 80,722 ; Neb.f 2,895 ; W.Va. 1882,143,12 ; N.C.f 596 ; Tenn. 46 ; Mo. ; Ark.f 6367; Cak 12 and 5010 and 10012 ; Ore. Civ. C. 510 ; Dak. C. Civ. P. 6 ; Ida. Civ. C. 8 ; Mon. C. Civ. P. 519 ; Wy.f Civ. C. 633 ; Uta. C. Civ. P. 8 ; S.C. Civ. C. 407 ; Ga. ; Ala. 11 ; Miss. 17 ; N.M. So, when an act is to be done on a particular day of the month, if that day be Sunday or a holiday, the next day shall be deemed the one intended : Va. ; W.Va. 1882,143,13; Ky. 21,9 ; Cak 13,5011,10013 ; Ida. Civ. C. 9 and 47; Uta. Civ. C. 9 ; 1884,55,57; Dak. Civ. C. 2119. See also §§ 4137,4517. But the above provisions do not apply to change the law of notes and bills : Pa., W.Va., Uta. When a notice is to be given, or an act done, a certain time before any proceeding, there must be such time exclusive of the day of the proceeding; but the day on which the notice, etc., is given is included : Va. ; Ky. 21,8 ; Civ. C. 681 ; Ore. But in South Carolina, the day of giving the notice is excluded, and the day on which the act or proceeding happens, or the full time is completed, is included: S.C. Civ. C. 421. Courts, etc., authorized to adjourn " from day to day " may adjourn from Saturday to Mon- day : Ky. 21,10. But in New York, the day of publication, etc., is excluded, and the final day, or day of the proceeding, is included : N.Y. Civ. C- 787. Tlie word county or town may mean the county, etc., in which the subject-matter referred t<^) is situate, belongs, or is cognizable : N.H. 1,2G; Vt. 25; Wis. 4972. ENACTMENT OF LAWS. 141 The words stafe^ajjer mean the newspaper designated by the legislature in which public acts, resolves, advertisements, and notices are required to be published : Me. 1,6. When a person is required to be disinterested or indifferent, a relationship by consanguinity or affinity within the sixth degree according to the civil law, or within that of second cousins, will disqualify, except by written consent of the parties : Me., Ind. The words shall have been include past and future cases: Wis.f 4972. The words usual and customary mean "according to usage" (§ 1010) : Dak. Civ. C. 2120. The word verdict includes the finding of a judge or referee^: Dak. Civ. C. 2122. Such abbreviations as are in common use may be used : N.Y. ; !Mich. 72.51 ; Wis. ; Ark. 1154 ; Cal.t 10186; Ore. ; Col. ; Ida. Civ. C. 71 ; Mon. C. Civ. P. 50 ; Ky. 63,1,2 ; Ga. 2221. And all feudal tenures are, in three, abolished : Ct., N.Y., Ga. In New Jersey, the statute 12 Car. II. C. 24 is re-enacted, by which tenure by kniglit's service, and socage in capite, was abolished, with all its incidents : N.J. Conveyances, 69. And all feudal tenures are abolished of lands originally granted by or under the state : N.J. ib. 73. And in two states, all tenures are declared to be in free and common socage : * N.J.'^ ib. 70-71 ; S.C. 1761. Notes. — « See also the constitutional provision, § 400. * But compare § 1101. '^ And see § 1103. '^ This se(^ms inconsistent with the principal provision above. § 1101. Title of the State. In four states, the Commonwealth is deemed to have possessed the original, and has the ultimate, property in all lands in the state : N.Y. 2,1,1,1 ; Ky. 63,1,1 ; Cal. 40 ; Ga. 2350. In Louisiana, the national domain comprehends all the landed estate and all the rights which belong to the nation, whether it is in the actual enjoyment of the same or has only a right to re-enter : La. 486. The legislature can pass no law interfering Math the primary disposal of the soil (compare § 407) : Dak. Civ. C. 168. § 1102. Incidents of Tenure. Where feudal tenures are abolished, it would seem that all the incidents thereof are also abolished, including escheat ; and that tlie so-called escheat now existing is properly an enactment of the state as sov- ereign, and not a consequence of tenure. See N.Y. 2,1,*L,3. And the following are expressly abolished: (1) Wardships: N.J. Conveyances, 69; (2) ousterlemains : N.J. j {'i) values -AnA forfeitures of marriages : N.J. ; (4) _^nes for alienations : N.Y. C. \,\^ ; N.J. ; (5) all rptarter-sales and other restraints on alienation reserved in grants of land: N.Y. ; (G) all liveries, primer seisins, homage, aids, escuage, etc. (as in 12 Car. II. C. 24) : N.J. But in the states where feudal tenures are preserved, as well as in other states by anomaly, the following are expressly preserved : (1) Bent service in socage tenures, with the distress inci- dent : N.Y." 2,1,1,4; N.J. Conveyances, 72 ; (2) fealty incident to such tenure : N.J. I^OTK. — " See also the constitutional provision, §§ 400-103. § 1103. Guardianship in Socage, where it exists, belongs first to the father, then to the mother, then to the nearest and eldest relatives of full age not under legal incapacity : N.Y. 2,1,1,5. Among relatives of the same degree males are pi'eferred : N.Y. The rights and authority of a guardian in socage are superseded by those of an ordinary guardian : N.Y. 2,1,1,7. § 1104. "Who may hold Lands. (For aliens, see in Division IT.) In New York, any citizen of the United Htates is capable of holding lands and of taking them by descent, devise, or purchase : N.Y. 2,1,1,8. OF THE ACQUIREMENT OF TITLE. 147 An Indian may purchase, hold, and convey lands ; but is only liable on contracts and subject to taxation and civU jurisdiction when he has become a freeholder to the value of $100: N.Y. 1843,87,4. In Indiana, no person except a citizen of the United States, an alien at the time in good faith resident therein, or an Indian, negro, or mulatto, can take, hold, convey, or pass lauds by devise or descent : Ind. 2915. § 1105. Who may Convey. See § 1410. All persons of full age not under legal in- capacity may alien lauds, or any interest in them, imuiediate, future, or contingent, by deed or will, according to law : Ala. 2144. Every person capable of holdiug land may alien at pleasure, except idiots, iusane persons, or infants : N.Y. 2,1,1,10. No purchase or contract with Ind- ians is valid except under legislative authority : N.Y. ib. 11-12. See also in Division II. § 1106. Quia Bmptores. This statute is expressly declared to be in force in New Jersey : N.J. Conveyances, 68. Art. 111. Of the Acquirement of Title. § 1110. Settlers. (A) In New Hampshire, the state land commissioners have power to sell public lands as they deem expedient: N.H. 8,1. (B) In Maine, the state land agent may convey any lots which have been surveyed accord- ing to law, at the price of thirty-hve cents an acre to actual settlers; and no more tlian one lot, not exceeding 200 acres, shall be sold to any one person ; the purchaser gives two notes, payable in labor on the roads, and must establish his residence on the lot within two years from the date of the certificate, which is then given hhn. If the purchaser fails to perform any of tlie duties required of him, or to pay his notes, he forfeits all right to his land, and the laud agent may dispose of it to another. When the conditions are complied with, the land agent gives the settler an absolute deed : Me. 5,27-8,31 and 34. Timber lauds are sold to the highest bidder by sealed proposals : Me. 5,45. (C) In New York, the commissioners of the land office direct the surveyor-general to sell the public lands at a price to be fixed by them ; and they also fix the amount to be paid down ; the rest is secured by a bond payable in six years with annual interest at six per cent; the purchaser thereupon receives a certificate, and, upon complying with the conditions of the bond, a patent for the land: N.Y. 1,9,5, §$ 18-20.23,25,27. (D) In Pennsylvania, the acts relating to settlers and land warrants are all old, and prob- ably tliere remains no land now open to settlement : Pa. Land Office. So, in Massachusetts, Vermont, Rhode Island, Connecticut, Indiana, Illinois, Iowa, Delaware and Missouri. (E) In Ohio, the auditor of tlie state is laud agent, and may sell the public land, where there are no laws relating to the subject, to actual settlers only, at twenty-five per cent of the appraised value ; the settler malies affidavit of good faith and intent to make actual settlement within twelve months ; upon actually residing on it within eighteen months, he receives a deed : 0. 84,59,8464-5. (P) In Michigan, the state university lands may be sold at $12 per acre, and the state school lands and salt spring lands at $4 per acre, after having once been offered at public auction ; fifty per cent to be paid down, the balance at the option of the purchaser, with seven per cent interest: Mich. 5262-3; 5290-1. For non-payment of principal or interest, the certificate is void, aud the state land commissioner may retake possession : Mich. 5267. The minimum price of the state building lands is $8 per acre, terms as above : Mich. 5288-9. And of the internal improvement lands and swamp lands, $1.25 per acre: Mich. 5296,5391. Of the agricultural college lands, $3 per acre, one fouith paid down, interest on balance: Mich. 5370. A gratuitous patent for swamp lands issues to a settler for 80 acres which he has occupied for five years and drained : Mich. 5436. (G) In Wisconsin, every person who settles upon and improves public lands may purchase 160 acres at the f'> Fartition, 1 ; Pa."' * Partition, 1 ; 0.* 5754 ; Ind.« 1186 ; 111."' * 106,1 ; Mich." 7850 ; Wis." 3101 ; Minn." 74,1 ; Neb." 2,802 ; Md."'* 66,13 ; DeL« 86,3 and 8 ; Va."- * 120,1 ; W.Va."- " 144,1 ; N.C. 1892 ; Ky. 63,1,13 ; Tenn. 3993 ; Mo."'* 3339 ; Ark."'* 4789 ; Tex. 3465 ; Cal.*''^ 10752 ; Ore. Civ. C. 419 ; Nev." 1327 ; Wash. 552 ; Dak."'* C. Civ. P. 548 ; Mon."-* Civ. C. 364 ; Wy. Civ. C. 564; Uta." * C. Civ. P. 635; S.C." 1829; Ga. 2304,3996; Ala.« 3497; Fla."'* 160,2; La. 1307; Ida."-* Civ. C. 487; N.M."-* 2274; Ariz." 2702; D.C.;* U.S. 1876,297, § 1. (E) In several, he has ejectment against such cotenant : 0. 5783; Ind. 10G3j Neb." 2,628 ; Ga. 2303 ; N.M." 33,7. See also in Part IV. (F) He has a general equitable action against cotenants : Mass."' ^' " 151,2 ; (G) lie has the action of account, general, as iu the case of copartners : Vt.*" 1217. So, in other states; see ia Part IV. Note. —See § 1377 for notes. § 1379. Contribution. In Kansas, one tenant in common, etc., having by consent the management of the estate, who makes repairs and improvements thereon with knowledge of the others, is entitled to contribution therefor: Kan."-'' 55,21. So, one tenant in common has a lien upon the interest of the other (1) in the crop for any balance due for labor or supphes furnished about such crop: Ala. 3479 ; (2) upon tlie estate, for the proportion of any taxes paid by him due from the other tenants : Mass." 12,63. See ia Part. III. Note. — See § 1377, notes. CHAPTER III. - CONVEYANCING. Note to Chapter. — The sign * throughout the chapter means that the provision applies both to realty and personalty ; the sign f that it applies to personalty only. By the French law prevailing in Louisiana, the law of donations applies equally to real and personal property, and it is impracticable to separate the pro- visions as in the laws of other states. For Louisiana, therefore, see Titles 5 and 6. 174 CONVEYANCING. Art. 140. General Principles. § 1400. Seisin. " All persons owning lands not held by an adverse possession shall be deemed to be seized and possessed of the same :" lo. 1928 ; Kan. 22,1. § 1401. By Person Disseized, (a) In many states, any person claiming a right or title to real estate, although out of possession, and there be an adverse possession, may sell and transfer his interest as fully as if in actual possession : Me. 73,1; Vt. 1884,146; 111.30,4; Mich. 5657; Wis. 2205 ; lo. 1932; Minn. 40,6 ; Kan. 22,6 ; Neb. 1,73,31 ; Mo. 673 ; Ark. 644 ; Cal.* 6047 ; Ore. 6,8 ; Nev. 262; Col. 202; Ida. 1874-5, p. 602,34; Mon. G. L. 210; Wy. 1882,1,7; Uta. 628 ; Ga. 2695 ; Miss. 1187; Ariz. 2278. (b) But in others, the common law is followed ; and a grant, devise, or con- veyance of real estate, made and delivered when the estate is in the actual possession of a person claiming title adversely to the grantor, is (except as be- low) absolutely void: E.I. 173,2; Ct. 18,6,15 ; KY. 2,1,2,147; N.C.« 1333; Ky. 11,2 ; 24,1 ; Tenn.'^ 2446 ; Dak. Civ. C. 681. And the seller must have been in possession one year before the sale : Tenn. And so also a sale under execution of such land is void : Ky. But not so in Tennessee : Tenn. 2448. Except that a valid grant, etc., may (as at common law) be made to the person in possession of the land : Vt. 1954; Ct. ; N.C. ; Ky. 11,6. And in other states, a devise of such lands may be made, and is valid, although they were possessed adversely to the testator: IST.H. 193,3; Mass. 127,26; Me. 74,4; Ky. 11,2. And in Tennessee, this law does not prohibit hona-fide sales. See also in Part V., Champerty. And in several, a valid mortgage may be made of such estate : N.Y. ib. 148 ; Ky. 11,7 ; Tenn. ; Cal. 7921 ; Dak. P. C. 190. See Art. 185, § 2630. The covenants in such void deed or other conveyance are vahd, and the grantor is bound by thera : Vt. 1954. The rule does not apply as between mortgagor and mortgagee, lessor and lessee, ven- dor and vendee, trustee and cestui: Ky. 11,7. (C) In other states, the laws are silent ; and the common-law rule would seem to prevail ; but it is usually much modified by the decisions of courts. Note. — "In North Carolina and Tennessee, the old statute of champerty (32 H. VIII. C. 9) is re- enacted. § 1402. Tortious Conveyances, (a) In several states, there is a general provision that no greater estate shall pass by any conveyance than the grantor possessed at the time of delivery of the deed or could then lawfully convey : N.H. 135,18; N.Y. 1,2,1,143; Va. 112,7; W.Va. 82,7; Ky. 63,1,17; Tex. 550; Miss. 1199. (b) And, in many others, it is specially provided that no convey- ance by a tenant for life or years shall work a forfeiture, but passes to the grantee all the interest which the tenant could lawfully convey : IST.H. 135,18; Mass. 126,7; Me. 73,5; Vt. 1918; N.Y. ih. 145; Ind. 2961; Mich. 5654; Wis. 2202 ; Minn. 40,5 : Va. 112,7; Ky. 66,1,1 ; Tex. 550 ; Cal. 6108 ; Ore. 6,5 ; Dak. Civ. C. 630 ; Wy. 1882,1,4 ; Ga.« 2260 ; Ala. 2196 ; Miss. See § 1454. Note. — " As to tenants for life only. § 1403. Forfeitures. And in many states, that no expectant estate can be defeated or barred (a) by any alienation or other act of the owner of the prece- dent estate (except where so specially provided by statute, or, in Massachusetts and Maine, in cases of barring tail, see § 1313) : Mass. 126,8-9 ; Me. 73,5 ; N.Y. 2,1, CxENERAL PRINCIPLES. 175 2,32; Mich. 5548; Wis. 2056; Minn. 45,-32-3; Va. 112,13; W.Va. 82,13; Ky. 63,1,12; Tex. 550; Cal. 5741; Dak. Civ. C. 213 ; S.C. 1883,280; Ala. 2184; Miss. 1199. (B) Nor, in several, by the destruction of such precedent estate by disseisin, forfeit- ure, surrender, merger, or otherwise: Mass. ; Me. ; N.Y. ; Mich. ; Wis. ; Minn. ; Cal. ; Dak. ; Ga. 2264 ; Miss. See also under E. So, in two others, not by the surrender or default of a life tenant (see also Art. 133, and in Part IV.) : Va. 129,3 ; W.Va. 80,3. (C) Nor, in many, by the determination of such precedent interest before the hap- pening of the contingency on which the future estate is limited to take effect. See, § 142G. Except that such expectant estate may be defeated in any manner or by any means which the party creating the estate shall in the creation thereof have provided or au- thorized ; and is not on that account to be adjudged void in its creation: Mass. ; N.Y. 2,1,2,33; Mich. 5549 ; Wis. 2057; Minn.; Cal. 5740; Dak. Civ. C. 212. (D) So, no discontinuance tolls the entry : Mass. 126,16. See § 1404. (E) So, a mortgage by a lessee to the lessor of the laud leased creates no merger : Md. 45,7. Ill Georgia, there is a general provision that if two estates in the same property unite iu the same person in his individual capacity, the less estate is secured in the greater : Ga. 2271. No union of the particular estate with the inheritance by purchase or by descent shall so operate, by merger or otherwise, as to defeat, impaii% or in any way affect such remainder: Va. 112,13; W.Va. 82,13; Ky. 63,1,12; Tex. 550; Miss. 119'9. When the reversion of any land expectant on a lease is mei'ged in any other estate, the per- son entitled to this estate has the same remedy against the lessee or his assigns for rent or for- feiture or breach of covenant, etc., as the person entitled to the original reversion would have had : Md. 45,6. § 1404. Descent Cast. And in many states also, the right of a person to the possession of real estate or the right of entry is not tolled, impaired, or affected (a) by descent cast in consequence of the death of the disseizor or person in pos- session : Mass. 126,16 ; Me. 104,5 ; Vt. 953 ; KY. Civ. C. 374 ; KJ. Addenda, 3-; Wis. 4217; Va. 129,4; W.Va. 80,4; Ky. 63,1,5; Mo. 3221; Ark. 4473; Cal. 10327 ; Nev. 1028 ; Dak. Civ. C. 50 ; Ida. C. Civ. P. 152 ; Uta. C. Civ. P. 187 ; S.C. 2282 ; Civ. C. 107 ; Miss. 1200 ; Mon. C. Civ. P. 38 ; Ala. 3233 ; Ariz. 2092. Unless, iu a few, the disseizor had peaceable possession for ten years (in Kentucky, fifteen years ; and in New Jersey, five years) after the disseisin : N.J., Ky., S.C. ; and iu New Jersey and South Carolina, without entry or continual claim. (B) Nor, in several, is such right lost by discontinuance : Mass. ; Me. ; N.J. Addenda, 7 and 10; S.C. 2293; as (1) by a conveyance by tenant in dower or curtesy : N.J. ; (2) by a conveyance or act of the husband of the owner: Va. 129,2. See also in Division II. § 1405. Time of Creation. The delivery of the deed, or the death of the testator, is deemed the time of creation of an estate, present or future, by deed or devise respec- tively : N.Y. 2,1,2,41 ; Mich. 5557; Wis. 2065; Minn. 45,41; Cal. 5749; Dak. Civ. C. 216. See also § 1562. All deeds duly executed and delivered carry the right to immediate possession, unless they specify a future day : Col. 206. So, if a vendor or tenant commit waste after he has sold his interest, but while still in pos- session, he is liable for damages: Va. 133,1 ; Ky. 66,3,4. § 1406. Shelley's Case. In many states, this rule is abolished ; and where an estate is limited, either by deed or by will, to a person and remainder'to his heirs or the heirs of his body, as well as to his issue, he takes a life estate, and the person or persons who shall at his death be such heir or heirs " takes a contingent 176 CONVEYAXCING. remainder by purchase : Mass. 126,4; Me. 73,6 ; Ct. 18,6,4 ; N.Y. 2,1,2,28 ; Micli. 5544; Wis. 2052; Minn. 45,28; Va. 112,11 ; W.Va. 82,11; Ky. 63,1,10; Tenn. 2814; Mo. 3943 and 4003; CaL 5779; Dak. Civ.. C. 236; Ala. 2183; Miss. 1201 ; N.M. 1425. So, in other states, in the case o^ wills only : N.H. 193,5 ; R.I.'' 182,2 ; N.J. Descent, 10; 0. 5968; Kan. 117,52; Ore. 64,28. Notes. — " The word heirs must be construed according to the laws of descent in these several states. Thus the issue of the deceased child of the life tenant would take as heirs in such child's place ; for example, see N.J. Descent, 10. * And as to devises to the issue or heirs of the body only. Art. 141. Of the Parties, § 1410. Who may Convey. (See §§ 1104-5.) (A) Any person, association, body politic or corporate who may hold real estate may convey the same by deed : Col. 198 ; N.M. 2748. (B) In others, all persons not under legal incapacity and aged twenty-one may alien their lands : Mich. 5652 ; Ala. 2144. § 1411. Persons under Disability, See Division II. § 1412. Persons not in Being. (A) In two states, no estate can be given or granted to any person but such as are in being at the time of the creation of the estate, or their immediate issue and descendants: Ct. 18,6,2; 0. 4200. (B) But in others, a deed or devise to an infant unborn, but in esse, is good :" N.C. 1328; La.* 1482. See also §§ 1440,2621. And in case of a will, it is sufhcient if the child be conceived at the time of the testator's decease : La.* In both cases, however, the estate does not pass unless the person be born alive : La.* For future estates, see also Arts. 142 and 144. (C) When a patent issues or a deed is made to a person dead at time of execution, the heirs take the title as if such deed, etc., had been made to them by name : Wis. 2258; Ky. 50,1,1. So, in many states, a patent of land issues to the heirs when the person entitled dies after the order: N.Y. 1,9,5,40; 0. 8468; 4120; Mich. 5346; Wis. 237b; N.C. 2780; Tex. 3931,3946; Cab 3523. jq'OTE. — " The same would seem to result from the general provision declaring a child conceived to be an existing person, in California and other states. See § 6005. § 1413. Posthumous Children. In most states, when a future estate or a remainder is limited by deed or will to the lieirs, issue, or children of any person, after the death of such person his posthumous children take as if living at the death, although no estate be conveyed to support contingent remainders : " N.Y. 2,1,2,1,30; 111. 30,14; Mich. 5546-7; Wis. 2054-5; Minn. 45,30; Va. 112,10; W.Va. 82,10; N.C. 1327; Ky. 63,1,15 ; Mo. 3945; Cal. 5698; Nev. 273 ; Col. 205 ; Dak. Civ. C. 190 ; Ida. 1874-5, p. 604,47; Mon. G. L. 223 ; S.C. 1846 ; Ala. 2182 ; Miss. 1202 ; N.M. 1427. And consequently a future estate depending on the death of any person witli- out heirs, issue, etc., is defeated by the birth of a posthumous child capable of inheriting from such person:* N.Y. 2,1,2,31 ; 111. ; Mich. ; Wis. ; Minn. 45,31 ; Va. ; W.Va. ; N.C. ; Tenn. 2009 ; Mo. 3946 ; Cal. 5739 ; Nev. 272; Dak. Civ C. 211 ; Ida. ih. 46 ; Mon. G. L. 222 ;. Ala. ; N.M. 1428. Such posthumous children must, in a few states, be born within ten months after the f^ither's death, in order to succeed under §§ 1413 or 1415 : Va. ; W.Va.; N.C. 1327; Ky. 63,1,9; Tenn. 2815; Miss. 1203. Notes. — "In some states, the principle applies in the ca.se of a will, but not in that of a deed. Spo § 2621. ^ This would also seem to follow from the principal provision in the other states. OF THE ESTATE CONVEYED. 177 § 1414. " Heirs." In North Carolina, any limitation by deed or will to the heirs of a living persi>n is construed to be to the children of such person, unless a contrary intention appear • N.C. 1329. In Georgia, limitations over to the "heirs," "heirs of the body," "lineal heirs," "law- ful heirs," " issue," or words of similar import, are held to mean children, whether the parents be alive or dead : Ga. 2249. And in such case the children and the descendants of children deceased at the time of the vesting of the estate take by representation: Ga. See also § 2800. § 1415. " Dying without Issue." In a deed or will, " dying without issue " (or heirs, or heirs of the body, in all these states except Mississippi) is construed to mean dying without issue, etc., living (or in esse ; see § 1412) at the time of death : N.Y. 2,1,2,1,22 ; Mich. 5538 ; Wis. 2046 ; Minn. 45,22 ; Va. 112,10 ; W.Va. 82,10 • N.C. 1327 ; Ky. 63,1,9 ; Tenn. 2815 ; Mo. 3942 ; Cal.* 6071 ; Nev. 271 ; Dak.* Civ. C. 617; Ida. 1874-5, p. 604,45; Mon. G. L. 221; S.C. 1862; Ga. 2251; Ala.* 2181; Miss. 1203; KM. 1424. But in a few states, so only in wills : N.J. Wills, 25 ; Md. 49,9. Unless a contrary intention appear : N.J., Md., Va., W.Va., N.C, Tenn. See also § 2800. § 1416. Volunteers. In several states, the provisions of the 8 & 9 Vict. C. 106, § .5, are adopted, and an immediate estate or interest in, or the benefit of a condition respect- ing, any estate, may be taken by a person under an instrument although he be not a party thereto: Va. 112,2 ; W.Va. 82,2 ; CaL 6085 ; Dak.* Civ. C. 621. And if a covenant or promise be made for the sole benefit of a person with whom it is not made, or with whom it is made jointly with others, such person may maintain in his own name any action therein which he might maintain in case it had been made with him only, and the consideration had moved from him to the person making such covenant or promise : Va., W.Va. § 1417. The Disponible Part. See ^ 2632-3, and in Title VI. Art. 142. Of the Estate Conveyed. § 1420. What maybe Conveyed. (A) Generally, except as provided in § 1401 and below, every estate or interest in lands, absolute or limited, present or future, certain or contingent, legal or equitable, may be conveyed : Va. 112,5; W.Va. 82,5 ; Ky. 24,1 ; 63,1,6; Ala. 2144; Miss. 1187; N.M. 2748. And the same would be implied in many other states from the definition of the real estate that may be conveyed by deed: Ore. 6,58. See § 1550. A right of re-entry, or of repossession for breach of condition subsequent, can be transferred : Cal.* 6046 ; but only to the owner of the property : Dak.* Civ. C. 60-3. See ^ 1401. No contract, for a valid consideration, to sell any interest, real or supposed, in land belong- ing to the United States, or for the occupancy thereof, or any improvement made thereon, shall for that cause be avoided or impeached, if the nature of such interest was known to the party and his consent thereto obtained without fraud or misrepresentation: Ind. 3000; Neb. 1,38,1. See also Art. 111. So, in other states, (B) expectant estates of every variety, including rights of entry, contingent or conditional interests, are descendible, devisable, and alienable, in the same manner as estates in possession: N.Y. 2,1,2,35 ; N.J, Conveyances, 82; Mich. 5551 ; Wis. 2059 ; Minn. 45,35 ; Cal. 5699 ; Dak. Civ. C. 191. (But this does not render contingent estates liable to be sold under executions : N.J.) So in two, only when the expectant estate, executory devise, or contingent remainder is so limited that in case of the person's death before the hapj)ening of the contingency, it will pass to his heirs : Mass. 126,2 ; Me. 73,3. And so, in two others, the expectancy of an heir (or other estates where the contingency is as to the person : N.J.) cannot be convoyed : N.J. ; La.* 2454. 12 178 CONVEYANCING. The same would result, from $ 1350, in California and Dakota. So, a mere possibility, not coupled with an interest, cannot be transferred : Cal.* G045; Dak.* Civ. C. G02. § 1421. Estates in Future. In many states, any estate, freehold or chattel, niay be made to commence in fiduro hy deed or will," whether with or without the intervention of a precedent estate : N.Y. 2,1,2,24 ; Ind. 2959 ; Mich. 5540 ; Wis. 2048; lo 1933; Miun. 45,24 ; Neb. 1,73,52 ; Va. 112,5; W.Va. 82,5; Ky. 63,1,6 ; Mo. 3945 ; Tex. 556 ; Cal. 5767 and 5773 ; Dak. Civ. C. 224 and 230 ; Ga. 2691 and 2247 ; Miss. 1187. So, in several, any estate which would be good by executory devise is equally good if created by deed : Va. ; W.Va. ; Ky. ; Ala. 2180. So, in Georgia, a future estate or interest may be conveyed by deed : Ga. 2691. But such deed must, in Georgia, operate to transfer the title immediately, or the instrument will be testamentary and revocable. Note. — " See, however. Art. 135 and the subsequent sections of Art. 142. § 1422. Life Estates. In several states, successive estates for life can only be limited to persons in being at the creation thereof : N.Y. 2,2,2,17 ; Mich. 5533 ; Wis. 2041 ; Minn. 45,17 ; Cal. 5774 ; Dak. Civ. C. 231. So, in two, of a life estate limited as a remainder upon a term for years : Cal. 5777 ; Dak. Civ. C. 234. And, further, where a remainder is limited on more than two successive estates for life, all the life estates subsequent to these two are void, and the remainder takes efifect at once upon their termination: N.Y. 2,1,2,17; Mich.; Wis. 2041 ; Minn. So, in two, when the remainder is limited upon estates for the life of persons not in being, they are void, and it takes effect at once : Cal. ; Dak. Civ. C. 231. Estates pur Auter Vie. In four states, when a remainder is created on an estate for the life of more than two persons, other than the grantee, it takes effect immedi- ately upon the death of the two persons first named, as if no other cestuis que vivent had been introduced : N.Y. 2,1,2,19 ; Mich. ; Wis. 2043; Minn. 45,19. § 1423. Future Estates. In a few, it is declared that no future estate shall be invalid on account of the improbability of the contingency on which it is to take effect : N.Y. 2,1,2,26 ; Mich. 5542 ; Wis. 2050; Minn. 45,26; Cal. 5697; Dak. Civ. C. 189. And two or more future estates may be created to take effect in the alterna- tive, so that if one fails the other may be substituted : N.Y. 2,1,2,25 ; Mich. 5541 ; Wis. 2049; Minn. 4.5,25; Cal. 5696; Dak. Civ. C. 188. A general or special power of appointment does not prevent the vesting of a future estate limited to take effect in case such power is not executed : Cal. 5781 ; Dak. Civ. C. 238. § 1424. Remainders. (A) A remainder, vested or contingent, may be created upon the determination of a term of years: N.Y. 2,1,2,24; Ind. 2959; Mich. 5536; Wis. 2044; Tenn. 2816; Cal. 5773 ; Dak. Civ. C. 230. But not, in several, unless the contingency must occur within the nde against perpetuities (§ 1440), or upon the ter- minaticm of the term for years: N.Y. 2,1,2,20; Mich. 5336; Wis.; Minn. 45,20; Cal. ; Dak. (B) No estate for life can be limited as a remainder on a term for years, except to a person in being at the creation of the estate : N.Y. 2,1,2,21 ; Mich. 5537 ; Wis. 2045 ; Minn. 45,21. (C) No remainder can be created upon an estate for the life of any other person or persons than the first grantee or devisee of such estate, unless it be in fee, or, if the estate granted be in a term of years, for the residue of the term : N.Y. 2,1,2,18 ; Mich. 5534 ; Wis. 2042 ; Minn. 4.5,18 : Cal. 5775 ; Dak. Civ. C. 232. (D) A fee may be limited upon a fee, upon a contingency which must occur within the PERPETUITIES. 179 time limited by the rule against perpetuities ($ 1440): N.Y. 2,1,2,1,24; Cal. 5773; Dak. Civ. C. 280 ; Ga. 2247. (E) A remainder can be created for a person not in being : Ga. 2268. § 1425. Vested Remainders. In Georgia, it is enacted that if a remainder-man die before the time the estate vests in possession, his lieirs take a vested remainder interest. And when the contingency is not as to the person but as to the event, they take a contingent remainder. But if the contingency be as to the person, and that person be not in esse at the time when the contingency happens, his heirs are not entitled : Ga. 22G6. It is declared that the law favors the vesting of remainders in all cases of doubt : Ga. 2269. And a vested remainder opens to take in all persons within the description coming into being up to the time of enjoyment commencing : Ga. 2268. § 1426. Contingent Remainders are, in Alabama, abolished ; but any estate may be created by deed or will to have an effect like r. i executory devise (of. $ 1420) : Ala. 2180. (A) in several states, when a remainder in an estate for life or years is not limited on a contingency defeating or avoiding such precedent estate, it will only come into effect on the death of the first taker or the expiration of the term : N.Y.2, 1,2,29 ; Mich. 5545 ; Wis. 2053 ; Minn. 45,29 ; Cal. 5780 j Dak. Civ. C. 237. See also § 1403. (B) So, in several, no contingent remainder is defeated by the termination of the precedent estate before the happening of the contingency ; but it will take effect at any time after such termination : N.Y. 2,1,2,34 ; Mich. 5550 ; Wis. 2058 ; Minn.45,34 ; Cal. 5742; Dak. Civ. 0. 214. So, in three, a contingent remainder shall in no case fail for want of a particular estate to support it: Va. 112,12 ; W.Va. 82,12 ; Ky. 63,1,11. And in Georgia, the fee may be in abeyance without detriment to subsequent remainders : Ga. 2247. (C) In several, any contingent remainder may be valid if it would be valid as a con- ditional limitation ; such as a remainder limited on a contingency which might operate to abridge the precedent estate : N.Y. 2,1,2,27; Ind. 2960; Mich. 5543; Wis. 2051 ; Minn. 45,27 ; Cal. 5778 ; Dak. Civ. C. 235. (D) In two, a contingent remainder cannot be created on a term for years unless the con- tingency must happen during the period of perpetuity (§ 1440) : Cal. 5776; Dak. Civ. C. 233. But for other states, see § 1424, A. § 1427. Estates in Terms, etc. In several, an estate for life may be created in a term of years and a remainder limited thereon: N.Y. 2,1,2,24 ; Ind. 2959; Mich. 5540; Wis. 2043; Minn. 45,24; Cal. 5773; Dak. Civ. C. 230. And a disposition of the rents and profits of lands to accrue are governed by the rules regulating future estates in land : N.Y. 2,1,2,36 ; Mich. 5552 ; Wis. 20G0 ; iMinn. 45,36. See also § 1441. Art. 144. Perpetuities. [For notes, see note to this Title.] § 1440. General Rule. (A) In several states, the law is declared that the absolute power of alienation of real estate shall not be suspended by any condition or limita- tion (in deed or will) for a longer period than during the contituiance of two lives in being at the creation of the estate: N.Y. 2,1,2,15; Mich. 5531 ; Wis. 2039; Minn. 45,15. (B) So, in others, not longer than during the existence of any number of such lives in being at creation of estate : Ind. 2962 ; 6057 * ; Cal. 5715 ; Dak. Civ. C. 201. (C) In one state, for no longer period than during the continuance of three lives, as above, and ten years after : Ala. 2188. (D) In several, no limitation is valid beyond lives in being and twenty-one years (plus, in Kentucky and Georgia, the period of gestation) thereafter: lo.* 1920 ; Ky. 63,1,27 : Ga. 22G7. Compare §1413. 180 CONVEYANCING. (E) But in several, a contingent remainder in fee may be created on a prior remain- der in fee, to take effect if the first remainder-man die under twenty-one, or otherwise lose his estate before arriving at full age: N.Y. 2,1,2,16 ; Ind. 2962 ; Mich. 5532 ; Wis. 2040; Minn. 45,16 ; Cal. 5772 ; Dak. Civ. C. 229. And in Arizona, any person may by deed convey real estate to his legitimate child or children, and natural child or children, or his child or children by adoption, and their issue during their natural lives, whether born or begotten before or after the conveyance ; and in such conveyance may inhibit the alienation of such estate during the natural lives of such children and issue : Ariz. 2287. And in Alabama, land may be conveyed to the wife and children, or children only, sever- ally, successively, and jointly, and to the heirs of the body of the survivor, if they come of age, and in default thereof over : Ala. 2188. § 1441. The Effect of limitations, any or all of which are void because perpetuities, (A) is to make those limitations valid which are not so void; and the last taker under a limitation not too remote will have the absolute fee : Ga. 2667. (B) In one other, however, the remainder in fee will take effect upon the termination of the last particular estate not too remote; and those life estates, etc., which are too remote are dropped out : Ind. 2963. (C) In several states, " every future estate is void in its creation which by any pos- sibility may suspend the absolute power of alienation for a longer period than is here prescribed ; and such power is suspended when there are no persons in being b}' whom an absolute fee in possession can be conveyed:" N.Y. 2,1,2,14; Mich. 5530; Wis. 2038 ; Minn. 45,14 ; Cal. 5716 ; Dak. Civ. C. 202. Subject to these rules, lands may be conveyed for such terms as the owner thinks proper ; and courts are enjoined to give effect in such cases to the intention and meaning of the parties : Ala. 2187. This section applies also to terms for years : Cal. 5770 ; Dak. Civ. C. 227. See also §§ 1341,] 412,1427. And to trusts: Cal. 5771 ; Dak. Civ. C. 228; and to dispositions of the income of property to accrue : Cal. 5722 ; Dak. Civ. C. 204. § 1442. Of Personal Property. The absolute ownership of personal property shall not be suspended by any condition or limitation whatever for a longer period than diiriug the con- tinuance and until the termination of not more than two lives in being at the date of the instrument or death of the testator: N.Y. 2,4,4,1. In all other respects, and in other states, limitations of future or contingent interests in per- sonal property shall be subject to the rules presented in tlie first chapter of this act in relation to future estates in lands : N.Y. ib. 2 ; Ind. 6057. And so, apparently, in all the other states there is no distinction made. See ^ 1440,1441. § 1443. Accumulations. In a few states, there are statutory restrictions on accu- mulations of rents and profits of real estate, whether directed by deed or will (and — in N.Y. 2,4,4,3 and 4 ; Pa. ; Ind.f ; Cal. ; Dak. ; Ala. — the same apply to personal estate also) ; thus, (A) in most states, (1) if the accumulation is to commence on the creation of the estate [i. e., the death of the settler or the execution of the conveyance] out of which the profits are to arise, it must be made for minors then in being at the creation of such estate, and must terminate on their majority: N.Y. 2,1,2,37; Ind.f 6058 ; Mich. 5553; Wis. 2061 ; Minn. 45,37 ; Cal. 5724 ; Dak. Civ. C. 206 ; Ala. 2189. (2) If it is to commence at any period subsequent to the creation of the estate, it must be within the time allowed by the rule against perpetuities (§ 1440) and must commence at some time during the minority of the beneficiary and terminate at his or their majority : N.Y. ; Ind.f ; Mich. ; Wis. ; Minn. ; Cal. 5722 and 5724 ; Dak. (B) In Pennsylvania, the accumulation may not be for a longer tcnn than during the life or lives of the settler or tpstator and twenty-one years plus the period of gestation thereafter ; that is to say, during the minority of the person entitled : Pa. Real Estate, 9. (C) But in Alabairia, there may be an accumulation for ten years without regard to the minority of the beneficiary: Ala. 2189. WARRANTIES. 181 (D) And in Wisconsin, there may be accumulation for twenty-one years for the benefit of a literary or charitable corporation : Wis. 2()(jj. lu New York, there may be accumulation until the sum is sufficient for the purpose to which it is destined, of funds held in a lawful trust by a college or literary incorporation : N.Y. 184G,74. Except as herein provided, all directious for accunaulatiows of the profits and of real [or personal; see above] estate are void : N.Y. 2,1,2,38 ; Pa. ; Ind.f ; Mich. 5554 ', Wis. 2062; Minn. 45,38; Cal. 5723; Dak. Civ. C. 205. § 1444. Effect. If a direction for accumalation be for a longer time than as pre- scribed in § 14i2, it is void only as to such additional time : N.Y. 2,1,2,38; 2,4,4,4 ; Ind.t 6058; Mich. 5554; Wis. 2062 ;. Minn. 45,38 ; Cal. 5725 ; Dak. Civ. C. 207. If a minor for whose benefit such accumulation is directed is destitute of means of support or education, the proper court may cause a reasonable sum for such purpose to be taken from the fund: N.Y. 2,1,2,39 ; 2,4,4,5; Pa. ib. ; Ind.f 6059 ; Mich. 5555; Wis. 2063 ; Minn. 45,39 ; Cal. 5726 ; Dak. Civ. C. 208. § 1445. Estates in Abeyance. In several states, it is provided that when the ownership of an estate is in abeyance (as when there is a valid future limitation not vested), if there is no valid direction in the creating instrument for the disposal of the rents and profits, they shall belong to the person presumptively entitled to the next estate: N.Y. 2,1,2,40; Mich. 5556 ; Wis. 2064 ; Minn. 45,40 ; CaL 5733; Dak. Civ. C. 210. § 1446. Religious Corporations. In Kentucky, no church or society of Christians can hold the title, legal or equitable, to land exceeding fifty acres of ground, but may hold that amount for the purpose of erecting thereon a house of public worship, public instruction, church, or graveyard : Ky. 13,3. And in Wisconsin, land may be given, granted, or devised to literary or charitable corpora- tions which shall have been organized under the laws of the State, for their sole use and benefit : Wis. 2039. In Kentucky, the statute of Elizabeth is re-enacted, and all grants, devises, etc., for charitable and educational purposes are made valid : Ky. 13,1. See also Part III., Beligious Corporations. Art. 145. Warranties. [For notes to article, see note to Title.] § 1450. Collateral Warranties are, (a) in many states, abolished altogether : N.Y. 2,1,2,141 ; Ind. 2925 ; KC. 1334; Mo. 3944; Cal. 6115; Nev. 276; Dak. Civ. C. 633; Ida. 1874-5, p. 604,50 ; Mon. G. L. 226 ; KM. 1426. (B) In several others, they are void as against the warrantor's heirs: Ct. 18,6,4; N.J. Co7ivei/ajices, 76 ; Del. 83,28 ; S.C. 1809. § 1451. Lineal Warranties are (a) abolished : N.Y., Ind., Mo., Cal., Nev., Dak., Ida., Mon., N.M. For citations, see § 1450. (B) But the heirs and devisees of a person creating any covenant in a deed are answerable, to the extent of the lands devised or descended to them, in the manner prescribed by law: N.Y., Ind., Mo., Cal., Nev., Dak, Ida., Mon., N.M. (C) And in several, the heirs are liable on a warranty by the ancestor to the value of their real estate from him devised or descended : Va. 112,7 ; W.Va. 82,7 ; Ky. 63,1,18. (D) So, in Louisiana, heritable « obligations and stipulations give to and impose upon heirs, assigns, and other representatives, the same duties and rie:hts that the original parties had and were liable to, except that beneficiary heirs can only be liable to the amount of the succession : La.* 2008. 182 CONVEYANCING. In several, a warranty made by a tenant for life of real estate which shall descend or come to any person in reversion or remainder, is void as against such person : N.J. Conveyances, lo ; Del. 83,28; N.C. 13-34; Ky. 63,1,17; S.C. ; Ala. 2192. So, in New Jersey, specially of a warrauty (1) by tenant by curtesy : N.J. Addenda, 10; (2) by a husband of his wife's land : N.J. ; (3) by a tenant in dower : N.J. ih. 7. In one, however, they bind the warrantor personally, as a covenant : N.C So, it seems to be implied, in the other states. Note. " These may be either as to real or personal property, or contracts concerning either ; see Title 6. § 1452. Breach. No covenant of warranty (or seisin) is considered as broken by reason (1) of the existence of a highway upon the land conveyed, unless otherwise specified in the deed : Vt. 3042 ; 111. 30,39. (2) Nor by eviction by a person whose right did not exist in perfection before the sale, as when it only became perfected through negligence of the buyer : La.* 2502. § 1453. Action. In two states, no right of action exists on a covenant of warranty when possession has been delivered to the warrantee until the party menacing the possession of tlie grantee has commenced legal proceedings, and the mortgagor or giantor has, after notice, refused to defend : Col. 208 ; La.* 2517-8. Such notice is unnecessary, however, unless the warrantor shall show that he possessed a good defence as against the party menacing, had he been given notice in time : La.* 2518. And if the vendee commence suit against a person disturbing his possession, he should notify his warrantor, who will then be obliged to indemnify him fully in case of condemnation, whether the warrantor conduct the suit or not : La.* 2519. § 1454. Estoppel. But in several states, every deed with general waiTanty (or, in Nebraska and Mississippi, with special warranty or quitclaim; or in New York, Illinois, Kansas, Missouri, Arkansas, California, Nevada, Colorado, Dakota, Idaho, Utah, Georgia and Arizona, any deed purporting to convey the fee-simple ; or a greater interest than the grantor had, in Iowa and Nebraska) (A) is conclusive as against the grantor, his heirs and assigns: N.Y. 2,1,2,143-4; Ky. 63,1,18; Cal. 6107; Dak. Civ. C. 629; Ga. 2699; Miss. 1195; "to the extent of any estate which shall thereafter come to him : " Ky., Cal., Ga., Miss. (b) When the grantor was not possessed of the estate purported to be conveyed at the time, any estate afterwards acquired by such grantor in the land inures to the benefit of, or is held by him in trust for, the grantee, to the extent of the estate so purported to be conveyed : 111. 30,7 ; lo. 1931 ; Kan. 22,5 ; Neb. 1,73,51 ; Mo 3940 ; Ark. 642 ; Cal. 6106 ; Nev. 261 ; Col. 201 ; Wash. App. p. 25, § 1 ; Dak. Civ. C. 633 ; Ida. 1874-5, Conveyances, 33 ; Mon. G. L. 209; Uta. 627 ; Ariz. 2277. Such original grantor is not, however, estopped from acquiring the estate at a judicial or tax sale against the grantee or his assigns, or for subsequent taxes : Neb. § 1455. Louisiana Law. The parties may by particular agreement add to the implied obligatirm of warranty (see § 1501), or diminish its effect, or may even agree that the seller shall not be subject to warranty. But he is always accountable for what results from his per- sonal act, and any contrary agreement is void ; and even in case of stipulation of no warranty, the seller must restore the price unless the buyer was aware at the time of sale of the danger of eviction, and bought at his peril and risk : La.* 2503-5. § 1456. Eviction. In case of warranty, the buyer, if evicted, may claim (1) the restitu- tion of the price ; (2) the fruits or revenues he has been obliired to return to the owner evicting ; (3) all costs in both suits; (4) actual damages: La.* 250G. Such full price must be restored thouijh the thing sold has lost in value by any cause, even by the buyer's neglect ; but if the buyer has reaped some benefits from the tiling, and in so doing impaired it, the seller may re- tain such damages on the price to the amount at which they may be estimated in favor of the evicting owner \ La.* 2507-8. See also ^ 4570-1. OTHER COVENANTS. 183 The seller is also hound to reiinhurse all useful improvements made hy the buyer on the premises: La.* 2509; and if the seller knowingly sold the property of a third person, he is bound to reimburse to tlic buyer all expenses, even of embellishments and luxury, that the buyer has been at in improving the premises: La.* 2510. See Title VL Kescissiou. Art. 146. Other Covenants. [For notes, see note to Title.] § 1460. General Principles. When obligations are attached to immovable property, they are called real obligations, in Louisiana : La.* 2010. They may be created in three ways : (1) by tlie alienation of immovable property subject to a real condition, either expressed or implied, in law (e. g., a sale subject to rent charge) ; (2) by alienating to one person the immovable property, and to another some real right to be ex- ercised upon it (e. g., servitudes) ; (3) by the creation of a right of mortgage upon immovable property. All these contracts give rise to obligations purely real on the part of those who ac- quire the land under any kind of title. They are not personally liable, but the real property is, and by abandoning it to the obligee they relieve themselves of all liability : La.* 2012. The real obligation created by condition annexed to the alienation of real property is suscep- tible of all the modifications that the will of tlie parties suggest, except such as are forbidden by law (see also Art. 136) : La.* 2013. There are also conditions implied by law which cre- ate a real obligation, such as the obligation to pay the price to the seller and to furnish roads to the public : La. 2014. Not only servitudes, but leases and all other rights, which the owner had imposed on his land before the alienation of the soil, form real obligations which accompany it in the hands of the person who acquires it, although he have made no stipulation on the subject, or they be not mentioned in the act of transfer. The purchaser may, if the circumstances permit it, have re- lief against the seller for concealment of such charges ; but the law establishes the rule that no one can transfer a greater right than he himself has, except where the neglect of some formality required by law has subjected the owner of the real incumbrauce to a loss of his right, in favor of a creditor or bona- fide purchaser : La. 2015. Considered with respect to those who have contracted them, some real obligations are also personal ; such are those created by mortgage for the payment of a debt. Others are strictly real, both as to the contracting party and his heirs or other successors. A mortgage given to secure the debt of anothei", without any obligation of personal responsibility, is an example of this latter kind. But no real obligation is personal, as to a subsequent possessor of the prop- erty on which it is created, unless he has made it such by his own act : La. 2019. § 1461. Covenants running with the Land are those contained in grants of real estates which are appurtenant to the estates and pass with them so as to bind the assigns of the cov- enantor and to vest in the assierns of the covenantee in the same manner as if they had person- aUy entered into them : Cal. 64G0; Dak. Civ. C. 819. All real obligations and rights thereto {i. e., both the benefit and burden) pass with the property : La. 2011. Every covenant which is made for the direct benefit of the estate granted, or some part of it then in existence, runs with the land : Cal. 6462 ; Dak. Civ. C. 821. So, the following are specially enacted to run with the land : (1) warranty : Cal. 6463 ; Col. 207 ; Dak. Civ. C. 822; (2) " quiet enjoyment : " Cal., Col., Dak. ; (3) for furtlior assurances: CaL, Dak.; (4) soisin : Me. 82,18; Cob; (5) against incumbrances: Me., Cob; (6) cov- enants for the payment of rent or taxes, by the grantee : Cal., Dak. The code of Georgia enacts that the purchaser of lands obtains with the title, however con- veyed to him, at public or ])rivate sale, all the riglits which any former owner of the land under whom he claims may have had by virtue of any covenants of warranty of title, of quiet enjoy- ment, or of freedom from incumbrances, contained in the conveyance from any former grantor, unless the transmissicm of such covenants with the land is expressly negatived in the covenant itself: Ga. 2702. So, in Maine, the assignee of a grantee or his executors, etc., after evictimi by an older and better title, may maintain an action on a covenant of seisin or against incumbrances as the first grantee might have done ; and the prior grantee cannot in such case release the covenants of the first grantor to the prejudice of his such grantee or assignee : Me. 82,18. 184 CONVEYANCING. The following run with the land when made by the covenantor expressly for his assigns, or to the assigns of the covenantee, so far as the assigns thus mentioned are concerned : a cov- enant for the addition of some new thing to the property, or for the direct benefit of some part of the property not then in existence or annexed thereto : Cal. 6464 ; Dak. Civ. C. 823 ; La. 2011. All servitudes pass with the land : La. See Art. 213. Compare also ^ 13.'>2. No covenant runs with the land except those above specified : Cal. 6461 ; Dak. Civ. C. 820. § 1462. Effect. A covenant running with the land binds those only who acquire the whole estate of the covenantor in some part of the property : Cal. 6465 ; Dak. Civ. C. 824. No one merely by reason of having acquired an estate subject to such a covenant is liable for a breach of it before he acquired the estate or after he has parted with it or ceased to enjoy its benefits : Cal. 6466 ; Dak. Civ. C. 825. § 1463. Apportionment. Where several persons, holding by several titles, are subject to the burden or entitled to the benefit of such covenant, it must be apportioned among them according to the value of their respective shares in the servient estate, if ascertainable ; if not, according to the quantity of such shares : Cal. 6467 ; Dak. Civ. C. 826. § 1464. Concealing Incumbrances. In two states, in all conveyances of real estate by deed or mortgage upon which any incumbrance exists, the grantor shall, before consideration paid, by exceptions in the deed or otherwise, make known to the grantee the existence and nature of such prior incumbrance, so far as he has knowledge of it : Mass. 126,17 ; Minn. 40,34. For the meaning of the term incumhrances, see § 1502. Whoever conveys real estate by deed or mortgage containing a covenant that it is free from all incumbrances, when an incumbrance appears of record to exist thereon, whether known or unknown to him, is liable to the grantee and his assigns for all damages sustained in removing the same : Mass. 126,18 ; Minn. 40,35. See also in Part V. § 1465. Actions on Covenants. In Georgia, an offer to rescind is not necessary to re- covery upon a covenant of warranty ; but an offer to rescind, and a refusal by the warrantee, should be considered in estimating damages : Ga. 2704. § 1466. Assignment by Covenantee. In Louisiana, all riglits acquired by a heritable obligation (§$ 1451,3010) may be assigned, either expressly by contract granting such right, or impliedly by the conveyance of the property to which they are attached : La.* 2009. Art. 147. Of the Deed. [For notes, see notes to Title.] § 1470 Feoffment Unnecessary. In New York, (a) feoffment with livery of seisin is expressly abolished : N.Y. 2,1,2,136. (B) In many states, it is expressly declared unnecessary : Pa. Deeds, etc. 74 ; 111. 30,1 ; Minn. 40,1 ; Md. 44,6 ; Va. 112,4 ; Ore. 6,1 ; Nev. 228 ; Col 199 ; Ida. 1874-5, p. 596,1 ; Ala 2195 ; Miss. 1187 ; Fla. 32,4. (C) So, in two others, all real estate, as regards the conveyance of the immediate freehold, " lies in grant as well as livery : " Va. 112,4 ; W.Va. 82,4. (D) And real estate may be conveyed by simple deed, according to the pro- visions of this chapter, executed according to Chapter IV., (1) without livery of seisin : Vt. 1922 ; R.I. 173,2 ; Pa. ; 111. 30,1-2 ; Md. ; DeL 83,1 ; Va. ; Tenn. 2811 ; Ark. 639 ; Nev. ; Col. ; Ida. ; Wy. 1882,1,1 ; Ala. ; Miss. ; Fla. (2) " Without any other act or ceremony." N.H. 135,1 ; Mass. 120,1 ; Me. 73,1 ; R.I. ; Mich. 5652 ; Wis. 2203 ; Minn. 40,1 ; Kan. 22,3 ; N.C. 1885,147,3 ; Tenn. ; Mo. 668 ; Ore. 6,1 ; Ida. 1874-5, Conveyances, 1 ; Mon. G. L. 178 ; Wy. [The same would be implied in all other states.] OF THE DEED. 185 In several states, a deed of bargain and sale, lease and release, covenant to stand seized, or deed operating by way of covenant to stand seized, transfers the possession of the bargainor, releasor, or covenantor to tlie bargainee, etc., for the estate or interest which the bargainor, etc., has in the use, as perfectly as if the bargainee, etc., had been enfeoffed at common law with livery of seisin : Va. 112,14 ; W.Va. 82,14 ; N.C. 1330 ; Ky. 24,3 ; Fla. 32,4. But " when any deeds or conveyances shall he acknowledged or proved, as aforesaid, in order to their being recorded, the nienioraudum of livery and seisin thereupon made in deeds of feoffment shall, in like manner, be acknowledged or proved, and shall be recorded with the deeds ; and such memorandum, proved and acknowledged as aforesaid, shall be taken and deemed a sufficient livery and seisin of the laud or other real estate conveyed : " S.C 1780. § 1471. Deed Necessary. And in nearly all states, no interest in real estate (cf. §§ 1300,1550,1551) can be conveyed or assigned or created without a deed:" KH. 135,12; Mass. 120,3; Me. 73,10; Vt. 1932 ; E.I. 173,3; Ct. 18,6,1,14 ; N.Y. 2,7,1,6-7 ; N.J. Frauds, 2 ; Pa. FmucU, etc. 2 ; 0. 4198 ; lad. 2919 ; Mich. 6179-6181 ; Wis. 2302; Minn. 41,10-11 ; Neb. 1,32,3 ; Del. 120,3; Va. 112,1 ; W.Va. 82,1 ; Ky. 24,2 ; Tenn. 2808 ; Mo. 2510 ; Ark. 3381 ; Tex. 548 ; Cal. 6091 ; Ore. Civ. C. 771 ; Nev. 283; Col. 1515; Wash. 2311; Dak. Civ. C. 672; Ida. Civ.C. 935-6; Mon. G.L. 160 ; Uta. 1010,1 ; C. Civ. P. 1206; S.C. 2018 ; Miss. 1188; Fla. 32,1 ; La. 2275 : Ariz. 2119. Nor trust or power. See §§ 1653,1710, and the Statute of Frauds in Title VI. Compare also §§ 1470,1624. Except, leases for a term not exceeding (1) one year : Vt. 1934 ; R.I. ; Ct. ; N.Y. ; Mich. ; Wis. ; Minn. ; Neb. ; Del. ; Ky. ; Ark. ; Tex. ; Cal. ; Ore. ; Nev. ; Col. ; Dak. ; Ida. ; Mon. ; Uta. ; Ga. ; 2280 ; Miss. ; Ariz. ; (2) two years : Fla. ; (3) three years : N.J. ; Pa. ; Ind. ; N.C. 1743 ; Tenn. ; (4) five years : Va., W.Va. Compare § 1624. AU sales of immovable property must be by "authentic act" (^ 1560), or under piivate signature : La. 2440. But an assignment of a lease fur a longer term than one year, made without deed, is good as against the assignor, his heirs, and devisees : Vt. 1934. This section does not prevent, after a fine has been levied, the execution of a deed to declare the uses of such fine : N.Y. 2,7,1,7. Note. — " Except, of course, under successions or by operation of law ; and compare §§ 1.551,1560. Commonly, tfie effect of such conveyance without a deed is only to create an estate at will. See Statute of Frauds, Title VI., § 41J3. § 1472. Release. In many states, a deed of quitclaim and release will pass all the estate that could lawfully be conveyed by a deed of bargain and sale : Mass. 120,2; Me. 73,14; Ind. 2924; Mich. 5653; Wis. 2207 ; Minn. 40,4; Ore. 6,3; Wy. 1882,1,3; 1884,5,2; Miss. 1195; Fla. 32,4. Deeds of bargain and sale are continued in use, and are deemed grants : N.Y. 2,1,2,142. A deed of release is effectual without first executing the lease : Va. 112,15 ; W.Va. 82,15 ; Ky. 24,4. The word release is unnecessary in such deed, and a simple quitclaim is effectual : Wy. 1884,5,2. Deeds of bargain and sale or other conveyances " heretofore " made and executed according to former laws and usages remain valid and effectual: Vt. 192S. Deeds of bari;ain and sale, lease and release, and covenant to stand seized^ are expressly recoguized as valid : R.I. 173,2. § 1473. Fines and Recoveries. There would seem to be no use for fines and recoveries when estates tail can be barred by an ordinary deed. So, in two states, they are expressly done away with : N.J. Conveyances, 81 ; Fla. 150,10. But in Delaware, fines and recoveries levied according to the law as it stood in England are still good conveyances : Del. 83,26. 186 CONVEYANCING. § 1474. Special Words. In most states, the term heirs or other words of in- heritance is nut necessary to create or convey an estate in fee, and every grant or devise of real estate passes the whole interest of the grantor or testator unless the intent to convey less appears in express terms or is necessarily implied : N.Y. 2,1,5,1 ; Ind. 2929 ; III 30,13 ; Mich. 5730 ; Wis. 2206 ; lo. 1929,1930 ; Minn. 40,4 ; Kan. 22,2 ; Neb. 1,73,49-50 ; Md. 44,4 ; Va. 112,8 ; W.Va. 82,8 ; N.C. 1280 ; Ky. 63,1,7 ; Tenn. 2812 ; Mo. 3939 ; Ark. 641 ; Tex. 551 ; Cal. 6105, 6329,6072 ; Ore. 6,4 ; 64,29 ; Nev. 270 ; Col. 204 ; Dak. Civ. C. 618,633 and 732 ; Ida. 1874-5, p. 603,44 ; Mon. G. L. 220 ; Prob. C. 486 ; Ga. 2248 ; Ala. 2178 ; Miss. 1189, Wy 1884,5,1. See also § 2808. So, in wills only : N.J. Descent, 13; Wy. 1884,5,1 ; Uta. 1884,44,1,2,13 ; S.C. 1861. In Maryland, the words grant and bargain and sell or any other words purporting, in a deed, to convey the whole estate of the grantor, are sufficient : Md. 44,5. And there is a general provision that all deeds concerning real estate wiiicli shall contain the names of the grantor and grantee or bargainor and bargainee, a consideration in cases where a considera- tion is necessary to the validity of a deed, and a sufficient description of the real estate con- veyed, and tlie estate or interest therein intended to be conveyed, sliall be sufficient : Md. 44,2. It is necessary tliat a deed should be made on good or valuable consideration ; and the con- sideration may always be inquired into when justice requires it : Ga. 2690. But no prescribed form is necessary to the validity of a deed, and no want of form will invalidate it, if sufficient in itself to make known the transaction between the parties : Ga. 2092. So, any instrument in writing signed by grantor or his agent having written authority is effectual to transfer the legal title to the grantee, if such was the intention of the grantor, to be collected from the entire instrument : Ala. 2948. § 1475. Construction. (A) Every instrument of conveyance is to be construed so as to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument and is consistent with the rules of law : N.Y. 2,1,5,2 ; Neb. 1,73,53 ; Ga. 2697. (B) If an instrument intended as a conveyance of real estate fails in whole or in part to take effect as a conveyance, it is nevertheless valid as a contract upon wliich a conveyance may be enforced so far as the rules of law permit : Tex. 561 ; Mich. 5727. (C) All conveyances of real property or interests therein duly executed and delivered carry with them the right of immediate possession, unless a future day be specified tlierein : Col. 206. (D) Every deed conveying land is construed (1) to include all buildings, privileges, and appurtenances, of every kind, belonging to the lands therein embraced, unless an exception be made in the deed : Va. 113,7; W.Va. 64,10; Ky. 63,1,23; (2) to pass all easements attached to the property: Cal. 6104; Dak. Civ. C. 627; (3) and to create in favor of the grantee an easement to use other real property of the grantor for the benefit of the granted estate in the same manner as he obviously and per- manently used it at the time : Cal., Dak. ; (4) to pass the estate of the grantor in highways bounding the land : Cal. 6112 ; Ore. Civ. C. 845 ; Dak. Civ. C. 631 ; (5) to pass the pai'ty-wall, and rights of compensation relating thereto : Pa. Party-walls, etc. 28. (E) If two clauses in a deed are utterly inconsistent, the former must prevail : Cal.* 6070 ; Dak.* Civ. C. 616 ; Ga. (F) Grants are to be interpreted in like manner with contracts io general, except as liercin excepted : Cal.* 6066 ; Dak.* Civ. C. 612. See Title VI. (Gr) A clear and distinct limitation in a grant is not controlled by other words less clear and distinct : Cal.* 60f)7 ; Dak.* Civ. C. 613 ; Ore. (H) A grant is to be interpreted in favor of the grantee, ex('(>pt that a reservation in any grant, and every grant by a public officer or body, as such, to a private party, is to be inter- preted in favor of the grantor : Cal.* 6069 ; Dak.* Civ. C. 615. § 1476. Recitals. (A) In Georgia, it is enacted that the recital in a deed of the receipt of purchase-money, docs not estop the maker from proving the contrary : Ga. 2698. STATUTORY FORMS. 187 (B) In deeds made by masters in chancery, sheriffs, guardians, adniiuistrators, executors, trustees, commissioners, or other persons, under and by virtue of any order, proceeding, or decree, of any court, it is unn(!cessary to copy any such joint order, proceeding, or decree ; but it is sufficient to refer to the same by title of case and name reseuts do grant, bargain, sell, and release unto the said C. D., all that [description] together with all and singular the rights, members, hereditaments, and appurtenances to the said premises belonging or in any wise incident or appertaining ; to have and to hold all and singular the premises before mentioned unto the said C. D., his heirs and assigns forever. [And I do hereby bind myself, my heirs, executors and administrators, to warrant and forever defend all and singular the said premises unto the said C. D., his heirs and assigns, against myself and my heirs, and against every person whomsoever lawfully claiming or to claim the same, or any part thereof]." Witness my hand and seal this day of , in the year of our Lord , and in the year of the independence of the United States of America. S.C. 1775. (10) I, A. B., grant to C. D. all that real property situated in county, state of , bounded [or described] as follows [description] . Witness my hand and seal this day of 18 . A.B. Cal. 6092. Form where a married woman is a party : This deed, made this day of , in the year , by* us, and , his wife, witnesseth, that in consideration of , we, the said and his wife, do grant unto . Witness our hands and seals. Test: A.B. See also in Division II. Note. — ° If a warranty deed is desired. Md. 44,56. § 1483. Quitclaim Deed. In many states, the form of a warranty deed will be found in § 1482, at the bracketed parts (see § 1482, note "), and of a quitclaim or special warranty by leaving out such parts." And the following forms are, in the respective states, deemed equivalent (A) to a valid quitclaim deed in fee : Ind., 111.,* Mich., Ic, Tenn., Mo. (B) To a conveyance in fee of all the right, title, and interest of the grantor, either in possession or expectancy, in and to the premises and all its privileges and appurtenances thereunto belonging : Wis. (C) To the expression that the grantor (or releasor) hath remised, released, and forever quitted claim, and by those presents doth reiriise, release, and forever quitclaim unto the gran- tee (or releasee), his heirs and assigns, all right, title, and interest whatsoever, both at law and in equity, in or to the lands and premises granted or released or intended so to be, so that neither he nor his personal representative, his heirs or assigns, shall, at any time hereafter, have, claim, challenge, or demand the lands and premises aforesaid or any part thereof, in any man- ner whatever: Va., W.Va. (1) A. B. quitclaims to C D. [description], for the sum of [consideration]. Ind. 2928 ; Mich. 5729. STATUTORY FORMS. 189 (2) J. S., of D., for the consideration of $1,000, conveys and quitclaims to J. V., of V., all interest in the following described real estate [description], situated in the county of , in state of . Dated this day of , 18 . J. S. [L. S.] 111. 30,10. (8) I hereby quitclaim to A. B. all my interest in [description]. Tenn. 2820. (4) For the consideration of dollars, I hereby quitclaim to A. B. all my interest in the following tract of land [description]. lo. 1970. (5) Take the general form (§ 1482, respectively) and substitute quitclaims for conveys and warrants: Wis. 2208. So, remise, release, and forever quitclaim: ^lo. Forms, No. 101. (6) The said [grantor] releases to tlie said [grantee] all his claims upon the said lands : Va. 113,3; W.Va. 64,3. Homestead. The words, " hereby releasing and waiving all rights under and by virtue of the homestead exemption laws of the state " amounts in either deed or mortgage to a release and waiver of all homestead rights : III. 30,11. Notes. — " This is specially enacted in Miss. 1235. *> This form does not, in the noted states, pass after acquired title unless so expressed ; and see § 1454. § 1484. Mortgages. The following forms are equivalent (A) to a valid mortgage to the grantee, his heirs and assigns, executors and administrators (with warranty of perfect title)," and warranty against all previous incumbrances and covenant of quiet possession : Iiid., 111., Mich. (B) To a mortgage of real estate simply : lo., Md,, Teun., Mo., Cal., Dak.. (C) To a conveyance of the land therein described, together with all the rights, privileges, and appurtenances thereunto belonging, in pledge to the mortgagee, his heirs, assigns, and legal representatives ft)r the payment of the indebtedness therein set forth, with covenant from the mortgagor that all ta.^es and assessments levied and assessed upon the land described, during the continuance of the mortgage, shall be paid previous to the day appointed by law for the sale of lands for ta.xes, as fully as the forms of mortgage now and heretofore in common use in this state ; and it may be foreclosed the same manner and with the same eifect, upon any default being made in any of the conditions thereof as to payment of either principal, interest, or taxes : Wis. (1) A. B. mortgages [and warrants] " to C. D. [description], to secure the repayment of [sum, notes, and time due]. Ind. 2930 ; 111. 30,11 ; Mich. 5731. (2) For consideration of dollars, I hereby convey [etc.], to be void upou condition that I pay [etc.]. lo. 1970. (3) I hereby convey to A. B. the following land [description], to be void [etc., as in (2) ]. Tenn. 2820. (4) This mortgage, made this day of , by me, , witnesseth that, in considera- tion of the sum of dollars, now due from me, the said , to , I, the said , do grant unto the said [description] , provided that if I, the said , shall pay, on or before the day of , to the said the sum of dollars, with the interest thereon, from , then this mortgage shall be void. Witness my hand and seal. Md. 44,63. (5) A. B., mortgagor, of County, Wisconsin, hereby mortgages to C. D., mortgagee, of County, Wisconsin, for the sum of , the followiug tract of land in County [description]. This mortgage is given to secure the following indebtedness [here state amount or amounts, and form of indebtedness, whether on note, bond, or otherwise ; time or iimes ivhen due, rate of interest, by and to tchom payable, etc.]. The mortgagor agrees to pay all taxes and assessments on said premises, and the sum of dollars attorney's fees in case of fore- closure thereof. "Witness the hand and seal of said mortgagor, this dav of , 18 . , ( , . [Seal.] In presence of ^ | ^ [Skal.J Wi.s. 2209. (6) This mortgage, made tlie day of , in the year , by A. B., of , mort- gagor, to 0. D., of , mortgagee, witnesseth : 190 CONVEYANCING. That the mortgagor mortgages to the mortgagee [property description], as security for the payment to him of dollars on [or before] the day of , in the year , with interest thereon [or, as security for the payment of an obligation, describing it etc.]. A. B. Cal. 7948 ; Dak. Civ. C. 1736. See Mo. Forms, Nos. 104-105 Note. — " If a warranty is desired, as in § 1482. § 1485. Assignment of Mortgage. In a few states, the following forms (A) are sufficient to vest in the assignee for all purposes all the rights of the mortgagee under the mortgage xiescribed, and the amount of indebtedness due thereon at the date of the assignment : Wis. ; Md. 44,38. (1) For value received, T, A. B., of , Wisconsin, hereby assign to C. D., of , Wis- consin, the within mortgage [or, a certain mortgage, executed to by C. F. and wife, of county, Wisconsin, the day ()f , 18 — , and recorded in the oifice of the register of deeds of county, Wisconsin, in vol. , of mortgages, on page j, together with the ■ and indebtedness therein mentioned. Witness my hand and seal this day of , 18 — . In presence of } ' A. B. [Seal.] ( > Wis. 2210. (2) I hereby assign the within mortgage to [the assignee]. Witness my hand and seal this day of . J. S. [Seal.] In Maryland, (B) the following form is declared effectual as any assignment that could be made : — (3) I hereby assign the within mortgage to J. S. : Md. 44,37. An assignment in this form, indorsed upon the original mortgage, convoys to the assignee every right which the assignor possessed as fully and amply as any instrument could do : Md. 44,38. (C) The following statutory forms are prescribed for a release of mortgage, and declared to be as full and effectual as any release could make it : — (1) I hereby release the above [or, within, if entered on the deed itself] mortgage. Md. 44,39. (2) I hereby release a mortgage made by C. D. to me, dated the day of , and re- corded in the clerk's office of county, in deed-book , page . A. B. Acknowledged before J. H. Va. 1884,527,2 ; W.Va. 1882,49,2. § 1486. Deed of Trust. And the following forms are sufficient for a deed of trust to secure debts or indemnif}" sureties : Va., W.Va., Tenn. (1) This deed, made the day of , in the year , between [the grantor], of the one part, and [the trustee], of the other part, witnesseth : that the said [the grantor] doth grant unto the said [the trustee] the following property : [description], in trust to secure [de- sa'ijjtion of debts or sureties to be indemnified, covenants, or other agreements']. Witness the following signature and seal. Va. 113,5 ; AV.Va. 64,5 ; Wy. 1877, p. 94, § 1. (2) In consideration of , I convey [and warrant] " to the land described as , in trust, to secure . Witness my signature, the day of , 188 . Miss. 1236. (3) This deed, made this day of , in the year , by me, , witnesseth, that whereas [consideration] I, the said , do grant unto , as trustee, the following property [description], in trust for the following purposes [ ]. Test: A.B. Witness my hand and seal. Md. 44,58. (4) For the purpose of securing to A. B. a note of this date due at [twelve months], with interest from date [or, as the case may be], I hereby convey to C. D. in trust, the following property [description]. And if the note is not paid at maturity, I hereby authorize CD. to sell the property herein conveyed [stating the manner, place of sale, notice, etc.], to execute a deed to the purcliaser to pay off the amount herein secured, with interest and costs, and to hold the remainder subject to my order. Tenn. 2820. See also Mo. Forms, No. 102. Note. — " S^e § 1434, note ». STATUTORY FORMS. 191 § 1487. Lease, etc. And the following forms are sufficient for a lease : — (1) This deed, made the day of , in the year , hetvveeu [J. S. and J. V.], wit- nessoth : that the said [J. S.] doth demise unto the said [J. V.], his personal representatives and assigns, all [description of property], from the day of , for the term of thence ensuing, yielding therefor during the said term the rent of [$1, payable monthly]. Witness the following sio;nature and seal. Md. 44,66; Va. 113,4 , W.Va. 64,4. (2) I have leased to and his representatives and assigns, , from the day of until the day of , yielding therefor, during the said term, the rent of . Wit- ness my signature, the day of , 188 — . Miss. 1238. In Texas, no bond for title or contract of sale can be recorded unless it sets forth whether the parties be married or single, and the land separate or community property : Tex. 1879,115. § 1488. Conveyances by Administrators, Executors, Guardians, and Commis- sioners may be in the folLjwing form, and are sufficient to pass all that could or would be ccniveyed in such case by any form of conveyance, viz. : (1) By virtue of the authority con- ferred on me, administrator of the estate of , deceased, by the decree of the Chancery Court of County, Miss., on the day of , confirming a sale made on the day of , in pursuance of a decree of said court on the day of , I, as administrator of said estate, in consideration of , hereby convey to , the purchaser thereof, the following land, to wit: . Witness my signature the day of . Miss. 1242. The description of the character of the maker of the conveyance will vary the foregoing form according to the fact ; and if a conveyance be made in pursuance of a power conferred by a will, and not by virtue of a decree, the will should be referred to as the source of power : Miss. 1243. § 1489. Sheriff's Deed. (A) Deeds of sheriffs upon sale on execution may be substan- tially in the fcdlowing forms : — (1) Whereas, a judgment in fiivor of A. B. and against C. D. was docketed in the Circuit Court of County, Wis., on the day of , 18 — , and E. F., sheriff [or G. H., then sheriff] of said county, in pursuance of an execution upon said judgment against the property of said C. D., said execution being dated the day of , 18 — , levied upon the lands hereinafter described, and proceeded according to law to advertise and sell the same to satisfy the demands and costs mentioned in the execution, and did, on the day of , 18 — , sell the said lands to L. M. for dollars, said L. M. being the best bidder therefor, and there- upon made out duplicate certificates of said sale in the forn; required by law. and filed one of said certificates in the office of the register of deeds of the county of witliin ten days after said sale, and delivered the other to the purchaser : And whereas mtmths have expired since said sale, and said premises remain unredeemed, and no creditor of the said C. D. has acquired the rigiit of said purchaser [or, and J. K., a creditor of said C. D., has acquired the rights of the j)urchaser by redemption, as the case may be] : Now, therefore, the said E. F., sheriff aforesaid, in consideration of the premises and of said sum of dollars to him [or to his predecessor], paid by the said L. M., hereby conveys to the said L. M. [or if a creditor shall have acquired the right of the said L. M., then to said creditor by name] the following tract of land in County, Wisconsin [description], with all the interest which said C. D. had therein on tlie day of , 18 — , or has since acquired. Witness the hand and seal of said sheriff this day of , 18 — . In presence of | — ; Sheriff County, Wil~* ^^'""^'^ Wis. 2211. (2) Tills deed, made this day of , in the year , by me , sheriff of County, Maryland, wituesseth, that by virtue of an execution issued out of , and dated day of , in the year , in the case of against , I, the said , as sheriff of said county, have S(dd to the following property [description]. Now, therefore, I, the said , do grant unto the said all the right and title of in and to the said herein- before described property. Witness my hand and seal. Test. : A.B. Md. 44,59. 192 CONVEYANCING. (3) By virtue of an execution issued by the clerk of the Circuit Court of County, Mis- sissippi, on the day of , 188-, returnable before said court ou the Monday of , 188-, to enforce a judgment of said court, rendered on the day of , 188-, in favor of against for $ and costs, I, as sheriff of County, Mississippi, have this day, according to law, sold the ftdlowing lands, to wit [description], when became the best bidder therefor, for the sum of , and having paid said sum of money, I now convey said land to him. Witness my hand the day of . . Miss. 1242. (4) This deed, made this day of , between A. B., sheriff of the county of [or special commissioner, as the case may be], of tlie first part, and C. D. of the second part ; whereas the said sheriff [etc.], in pursuance of the authority vested in him by a decree [.judg- ment or order] of the Court of the county of , made on the day of , in a suit in chancery [or an action at law], therein pending, in which E. F. was plaintiff and 6. H. was defendant, did sell the real estate hereinafter mentioned, and conveyed according to tlie terms and conditions required by said decree [judgment, etc.], at wliich sale the said C. D. became the purchaser fcjr a sum of dollars. And whereas the said court, by a subsequent decree made in the case, ou the day of , confirmed the said sale, and directed a deed for the said real estate to be made to the said C. D., by the said sheriff. Now, therefore, this deed witnesseth : that the said A. B., sheriff [etc.], as aforesaid, doth grant unto the said C. D. a certain parcel [description]. Witness the following signature and seal : "a. B., Sheriff [etc.]. [L. S.] W.Va. 64,9. (B) Effect. Such deed, in Wisconsin, shall convey to the purchaser therein named all the interest of the judgment debtor in the property described, as fully as in the form of deed for that purpose heretofore in common use in this state : Wis. 2211. See Col. 1857. See also Wis. §§ 2212-2213, for deeds on foreclosure of mortgages and by guardians. See Md. 44,60-2, for trustee's deed under a decree, commissioners' deed in partition, and executor's deed. For a deed by trustee of sale under a trust-deed, see W.Va. 64,8; 1882,140; Mo. Forms, Nos. 103,106,107; Wy. 1877, p. 96,4. Art. 150. Forms of Covenants. § 1500. Implied Covenants. Ill many states (a) no covenant is implied in any conveyance of real estate, whether it contain special covenants or not, except as below (§§ 1501,1502) specified: N.Y. 2,1,2,140; Mich. 5655; Wis. 2204; Minn. 40,6; Tex. 557; Cal. 6113; Ore. 6,6 ; Wy. 1882,1,5. (B) The seller (of either real or personal property iu Louisiana) is always bound, whether stipulations to that effect have been inserted or not, to warrant the buyer (1) against eviction from the whole or the part of the thing sold ; (2) against the charges claimed on such thing which were not declared at the time of sale : La. 2501. § 1501. Special Phrases. (A) In several states, when a deed uses the words, And the said {grantor) cnvertnnts (or, in Kentucky, tvarrants), the effect is as if it were expressed by the covenantor to be for himself, his heirs, personal representatives, and assigns, and it shall be deemed to be with the covenantee, his heirs, personal representatives, and assigns: Md. 44,67 ; Va. 113,9 ; W.Va. 64,12 ; Ky. 24,5. (B) In many states, the words grant (Pa., III., Del., Mo., Ark., Te.x., Cal., Nev., Dak., Ida., Mon., Ala., Miss.), bargain (Pa., Ill,, Del., Mo., Ark., Nev., Ida., Mon., Ala., Miss., ^M.),sea (Pa., 111., Del., Mo., Ark., Nev., Ida., Mon., Ala., Miss., N.M.), convey (Tex.), or the general form of warranty deed, as in § 1482 (Ind., Ill, Mich., Wis.), in deeds of fee-simple, effect an express covenant to the grantee, his heirs, or assigns (1) of seisin : Pa. Deeds, 75 ; Ind. 2927 ; 111." 30,8 and 9 ; Mich. 5728 ; Wis. 2208 ; Mo. 675 ; Ark." 639 ; Ala. 2193 ; Miss. 1190 ; N.M." 2750. (2) Of special warranty, or against incnmbrances by the grantor : Pa. ; Ind. ; 111. ; Mich. ; Wis. ; Del. 83,2 ; Mo. ; Ark. ;" Tex. 557 ; Cal. 0113 ; Nev. 277 ; Dak. Civ. C. 628; Ida. 1874-5, p. 005, 51; Mon. G.L. 227 ; Ala. ; Miss.; N.M." FORMS OF COVENANTS. 193 (3) For quiet eujoyment : Pa.," Ind., 111., Mich., Wis., Ark.," Ala., Misg. (4) Fi)r further assurances of such real estate to be made by the grautor and his heirs to the grantee and his heirs : Mo. 675. (5) Of right to convey : lud., Mich., Wis., Cal., Ida., Men. (6) Of general warranty, or against all incumbrances : Ind., Mich., Wis., Ark.," Tex. (C) In Georgia, a general warranty of title against the claims of all persons includes in itself covenants of a right to sell, of quiet eujoyment, and of freedom from incumbrances : Ga. 2703. (D) In other states, the term wai-rants amounts to covenants of seisin, right to convey, quiet enjoyment, against incumbrances, and of warranty : Ind. 2927 ; 111. 30,9 ; Mich. 5728; Wis. 2208. For other cases, see § 1460. For covenants in mortgages, see § 1867. Note. — " Unless limited by express words. § 1502. Incumbrances. The term incumbrances includes taxes, assessments, and all liens upon real property : Tex. 558 ; Cal. 6114 ; Dak. Civ. C. 633. § 1503. General "Warranty. (For many states, see the general form of warranty deed : Ind., 111., Mich., Wis., lo., Tenn., Mo., Ark., Tex., S.C.) In a few states, the following words are equivalent to a covenant, that the grantor, his heirs, and personal representatives will forever warrant the said pi-operty unto the grantee, his heirs [devisees], and assigns, against the claims and demands of all per- sons whomsoever (Mich., Wis., Md., Ya., W^Va., Ky., Miss.) ; and in Michigan and Maryland, a warranty binds also the grantor's devisees : — (1) The word tvarrants or with wam-anty without restriction has such effect : 111. 30, 9; Mich. 5728; Wis. 2208; Ky. 24,5 and 7; Miss. 1233. (2) The words generally warr>ants,ov with general warranty : Md. 44,68 ; Va. 113,10 and 12; W.Va. 64,13 and 15. § 1504. Special "Warranty. And the following words or forms take effect as a covenant by tlie grantor (A) tliat he, his heirs, devisees, and personal repi-esentatives will forever warrant and defend the grantee, his heirs, personal representatives, and assigns against the claims of the grantor and all persons claiming through him : Md., Va., W.A'a., Ky., Miss. ; and in i\Iaryland, such warranty binds also the grantor's devisees. (1) The words warrant specially, or toith special warranty : Md. 44,69; Va. 113,11 and 12 ; W.Va. 64,14-15 ; Ky. 24,6-7 ; Miss. 1232 and 1234. (2) The words warrant the title against all persons claiming under me: Tenn. 2820 ; Mo. Forms, No. 99. § 1505. Seisin. In all conveyances the frdlowing words take effect as a covenant by the grantor, his heirs, devisees, and personal representatives "that said grantor, at the time of the execution and delivery of the deed, was lawfully seized of the property conveyed : " (1) "that he is seized of the land hereby conveyed:" Md. 44,70; (2) "that I am seized and possessed of the said land:" Tenn. 2820; (3) "that I am lawfully seized in fee of the af<>rpgranted premises : " Ark. Forms, No. 127. See also § 1501. § 1506. Right to Convey. And the following words take effect as if the grantor cove- nanted " that he has good right, full power, and absolute authority, to cimvey the said land, with all the buildings thereon, and the privileges and appurtenances thereto belonging, unto the grantee, in the manner in which the same is conveyed by such deed according to its true intent." (1) "That [the grantor] has the right to convey the said laud to the grantee: " Md. 44, 71 ; Va. 113,13; W.Va. 64,16. (2) " That I have a right to convey it: " Tenn. 2820; Ark. Forms, No. 127. § 1507. Further Conveyances. And the following words take effect as if the grantor were to covenant that " he, his heirs or personal representatives will, at any time, upon any 13 194 CONVEYANCING. reasouable request, at the charge of the grantee, his heirs or assigns, do, execute, or cause to be done or executed, all such further acts, deeds, and things, for the better, more perfectly and absolutely conveying and assuring the said lands and premises, hereby conveyed or intended so to be, unto the grantee, his heirs and assigns, in manner aforesaid, as by the grantee, his heirs or assigns, his or their counsel in the law, shall be reasonably devised, advised, or re- quired." (1) Tliat he " will execute such further assurances of the said lands as may be requisite:" Md. 44,74; Va. 113,15; W.Va. 64,18. § 1508. Quiet Enjoyment. And the following words take effect as if the grantor cove- nanted that " the grantee, his heirs and assigns, might, at any and all times thereafter, peaceably and quietly enter upon, and have, hold and enjoy the land conveyed, with all the buildings thereon and the privileges and appurtenances thereunto belonging, and receive and take the rents and profits thereof, to and for his and their use and benefit, without any eviction, interruption, suit, claim, or demand whatever by the said grantee or any other person." (I) That " the grantee shall have quiet possession of the land : " Va. 113,14 ; W.Va. 64,17. (2) That he " shall quietly enjoy said land : " Md. 44,72. § 1509. Against Incumbrances. And the following words take effect as if the grantor had covenanted that the grantee should " be freely and absolutely acquitted, exonerated, and forever discharged, or otherwise by the said grantor or his heirs, saved harmless, and indem- nified of, from, and against any and every charge and incumbrance whatever." (1) That such land is ''free from all incumbrances : " Va. 113,14; Ark. Forms, No. 127. § 1510. Incumbrances by the Grantor. And the following words take effect as if the grantor were to covenant that *' he had not done or executed, or knowingly suffered, any act, deed, or thing whereby the lauds and premises conveyed, or intended so to be, or any part thereof, are or will be charged, affected, or incumbered in title or estate or otherwise." That "he has done no act to incumber the said lands:" Md. 44,73: Va. 113,16; W.Va. 64,19.- § 1511. Covenants in Leases ; Rent. The following words take effect, in a lease, as if the lessee were to covenant " that the rent reserved by tlie deed shall be paid to the lessor, or those entitled under him, in the manner therein mentioned." That the lessee is " to pay the rent : " Va. 113,17 ; W.Va. 64,20. § 1512. Against Assignments. And the following words take effect as if the lessee were to covenant that he " will not, daring the term, assign, transfer, or set over the premises, or any part thereof, to any person, without the consent, in writing, of the lessor, his represen- tatives or assigns." That he "will not assign without leave : " Va. 113,18 ; W.Va. 64,21. § 1513. For Repairs. And the following words take effect as a covenant " that the de- mised premises will, at the expiration or other sooner determination of the term, be peaceably surrendered and yielded up unto the lessor, his representatives or assigns, in good and substan- tial repair and condition, reasonable wear and tear excepted." That the lessee " will leave the premises in good repair: " Va. 113,18 ; W.Va. 64,21. § 1514. Quiet Enjoyment. And the following words take effect as a covenant that " the lessee, his personal representatives and lawful assigns, paying the rent reserved and performing his or their covenants, shall peaceably possess and enjoy the demised premises, for the term granted, without any interruption or disturbance from any person whatever." By the lessor " for the lessee's quiet enjoyment of his term : " Va. 1 13,20 ; W.Va. 64,23. § 1515. Re-entry. And the following words take effect as an agreement "that if the rent reserved or any part of it be unpaid for days after the day in which it is due, or if any other of lessee's covenants be broken, then the lessor or those entitled in his place, may re-enter and repossess the premises." That " the lessor may re-enter for defniilt of days in the payment of rent, or for the breach of the covenants : " Va, 113,21 ; W.Va. 64,24. GENERAL PRINCIPLES. 195 § 1516. Taxes. And the following words take effect as if the lessee were to covenant that "all taxes, levies, and assessments upon the demised premises, or upon the lessor on account thereof, shall be paid by the lessee or those claiming under him." A covenant " to pay all ta.xes : " Va. 113,17. § 1517. The Lessor's Implied Covenants in every lease are (1) to deliver the thing leased to the lessee ; (2) to maiutaiu it in a condition such as to serve for the use for which it was hired : La.* 2G92. (3) To cause the lessee to be in peaceable possession during the lease : Uta. 1204; La.* § 1518. The Lessee's Implied Covenants are (1) to enjoy the thing leased as a good administrator, according to the use for which it was intended: Uta. 1204; La.* 2710 ; (2) to pay the rent at the terms agreed on : La.* CHAPTER IV. — FORMALITIES OF CONVEYANCING. Note to Chapter. — * Throughout this chapter this sign means that the provision so noted applies also to the conveyance, etc., of personal property. See note to Title. Art. 155. General Principles. § 1550. Definitions. (See also §§ 1300,1301.) Land, real estate, or the term estate or interest in land, as used in this chapter, is further defined to be (A) every interest, freehold or chattel, legal or equitable, present or future, vested or contingent, in land : Neb. 1,32,22 ; Ore. 6,56. (B) " Lands, tenements, and hereditaments : " N.Y. 2,3,36 ; Ark. 645 ; Ore. ; Ida. 1874-5, Conveyances, 35 ; Mon. G. L. 211 ; Uta. 651 ; N.M. 2749. See also § 1300, A. It includes all chattels real, e-^ccept leases for a term not exceeding (1) three years: N.Y. ; (2) one year: Neb.; (3) without exception: Ark. It includes ''real movable property:" N.M. ; mining and land claims : Uta. See, for most states, §§ 1300,1471. § 1551. Deeds.'' A deed or conveyance in this chapter includes (1) every in- strument by which any estate or interest in real property is created, aliened, mortgaged, or assigned, or by which the title to any real estate may be affected in law or equity : Vt. 1922 ; KY. 2,3,38 ; Pa. Deeds, etc. 76 ; 111. 30,20 ; Mich. 5689 ; Wis. 2242 ; Minn. 40,26 ; Keb. 1,73,46 ; 1,32,23 ; Mo. 082 ; Ark. 660 ; Cal. 6215 ; Ore. 6,57 ; Nev. 230,303 ; Dak. Civ. C. 672 ; Ida. 1874-5, Conveyances, 36 ; Mon. G. L. 212 ; Wy. 1882,1,21 ; Uta. 652 ; N.M. 2752 ; Ariz. 2280. (2) Mortgages : N.H. 135,4 ; 111. ; Col. 225 ; (3) leases and all conveyances under seal : Col. ; (4) the award of arbitrators purporting to decide the title to real estate : Ct. 18,6,23 ; (5) powers of attorney : Vt. 1935,1946 ; 111. ; Md. 44,28 ; (6) all deeds conveying an estate of inheritance or freehold : R.I. 173,3; O. 4198; Md. 44,1 ; (7) all leases for years or an un- ceilain interest : 0. ; N.C. 1743 ; (8) conveyances of land, or of any interest therein : Ind. 2919 and 2956; 111.; Neb. 1,32,3; Mo. 674; (9) conveyances of claims and improvements ui)on public lands : Neb. 1,73,30 ; (10) declarations or limitations of a use : Md. Except (1) wills : N.Y. ; Ind. ; Mich. 6180 ; Wis. ; Minn. ; Neb. 1,32,4 ; W.Va. 82,1 ; Mo. 701 ; Ark. 646 ; Cal. ; Ore. ; Nev. ; Col. 229 ; Dak. ; Ida. ; Mon. ; Wy. ; Uta. ; Fla. 32,1 ; N.M. 2770; Ariz. (2) Leases for a term" not exceeding (a) three years ; N.Y. 2,3,36 and 38 ; Pa. Frauds, etc. 1 ; Ind. ; N.C. ; Tenn. ; Wy. ; (/3) one year : R.I. ; Ct. 18,6,14 ; Mich. 6179 ; Wis. 2302 ; Minn. 41,10 ; Kan. 43,5; Neb. ; Del. 120,3; Ark. ; Cal. 6091 ; W^ash. 2053 ; Dak. ; Ida. ; Mon. ; Uta. ; S.C. 1810 ; Ga. 2280 ; Miss. 1188 ; Ariz ; {y) seven years : Md. ; (S) six years : W.Va. ; (e) five years : Ky. 24,8. (3) Assign- ments of leases for more than one year; Vt. 1934. (4) Letters of attorney, or other 196 FORMALITIES OF CONVEYANCING. instruments containing a power to convey land as agent for the owner : " jS'.Y. 2,3,39 ; Mich. 5690; Minn. 40,27; Neb. 1,73,47; Dak.; Wy. 1882,1,22; Ariz. (5) Execu- tory contracts for the sale or purchase of land : N.Y., Ind., Mich., Wis., Minn., Neb., Dak., Ida., Mon., Wy., Ariz. ; (6) grants of estates at will : Cal. Aad in New York, there are special exceptions of leases for life or years in certain counties : N.Y. 2,3,42. Note. — « For other states, see the Statute of Frauds in Title VI. See also §§ 1624,1670,1300, 1301, 4471. § 1552. Purchaser, as used in this chapter, means every person to whom an estate or interest in land shall be conveyed for a valuable consideration, and also every as- signee of a mortgage, lease, or other conditional estate : N.Y. 2,3,37 ; Mich. 5688 ; Wis. 2242 ; Minn. 40,25 ; Neb. 1,73,45 ; Wy. 1882,1,20. Art. 156. The Execution of the Deed. [For notes to article, see note to Title.] § 1560. In Writing. The laws of most states specially require all deeds of real estate to be in writing, and signed by the party making them : NH. 135,3 ; Mass. 120,1 and 3 ; Me. 73,10 ; Vt.' 1927 ; E.I. 173,3 ; Ct. 18,6,1,5 ; N.Y. 2,7,1,6 ; 2,1,2, 137 ; N.J. Fravds, 2 ; Pa. Frauds, etc. 2 ; O. 4106 ; Ind. 2919 ; Mich. 5652 ; 6179 ; Wis. 2203,2302 ; Minn. 41,10 ; Kan. 22,7 ; Neb. 1,73,1 ; Md. 44,3 ; Mo. 674 ; Ark. 3381 ; Tex. 548 ; Cal. 6091 ; Ore. Civ. C. 771 ; M. L. 6,1 ; Nev. 228 ; Wash. 2312 ; Ida. 935 ; Mon. G. L. 178 ; Wy. 1882,1,1 ; Uta. 617 ; Ga. 2690 ; Ala. 2145 ; 1885, 84; Miss. 1187-8; N.M. 2751 ; Ariz. 2245. So, in Florida, all deeds must be in writing : Fla. 32,1. In Louisiana of every donation inter vivos of immovable property or incorporeal things, an "act "must be passed before a notary public and two witnesses : La. 1536. Tlie jjarty executing may si,2;n by his mark : Ct., Mon., Ala. See also § 1023. He must sign at the foot of the deed : Ala. Or they may, in most states, be signed by his agent duly constituted : N.H. 1 35,1 ; Mass. ; Me. 73,15 ; Vt. 1922 ; Ct. ; N.Y. ; N.J. ; Pa. ; 0. 4198 ; Ind. ; Mich. ; Wis. ; Minn. ; Kan. ; Mo. ; Ark. ; Cal. ; Ore. ; Nev. ; Dak. Civ. C. 622 ; Ida. ; Mon. ; Wy. ; Uta. ; Fla. ; N.M. ; Ariz. Such agent must have written authority : N.Y. ; Pa. ; 0. ; Wis. ; Minn, ; Neb. 1,73,56; Ark.; Tex.; Cab; Ore.; Dak.; Ida. ; Uta. C. Civ. P. 1206; Ala.; Ariz. 2119; Mon. See also the Statute of Frauds, Title VI. For the execution of such powers of attor- ney, see also Art. 167. For the law of agency, see in Division II. Estates created by conveyance not in writing are generally only estates at will. See in Title VI., and § 2002. § 1561. Form. All deeds must be on a single sheet : 0. 4149. They may be on parchment or paper: Ala. 2145. Indenting is not necessary : Md. 44,0. " All deeds must be made on good consideration : " Ga. 2690. § 1562. Delivery. (A) It is also necessary that the deed should be delivered by the party executing : Mass. 120,1 ; R.I. 173,2 and 3 ; Tex. 548 ; Ga. 2690 ; Miss. 1188; Fla. 32,1. So, a grant only takes effect from delivery (compare § 1406) : N.Y. 2,1,2,138 ; Cal.* 6054 ; Dak.* Civ. C. 606. The execution of an instrument is in other states expressly defined to be the subscribing, sealing (if a seal), and dcUvering it : Ind. 451; Cal. 11933; Ore. Civ. C. 744. THE EXECUTION OF THE DEED. 197 (B) A grant duly executed is presumed to have been delivered at its date : Cal.* 6055 ; Dak.* Civ. C. 607. § 1563. Escrows. (A) A grant may be deposited by tlie grantor witli a third person, to be delivered oil performance of a condition ; and, on delivery by tlie depositary, it will take efifect. AVhile still in the possession of su(;h third person, and subject to the condition, it is called an escrow : Cal. 6057 ; Dak.* Civ. C. 609 ; Ga. 2693. (B) In Georgia an escrow, when possessed by the grantee, is presumptive proof of a deliv- ery, but may be rebutted. (C) A grant cannot be delivered to the grantee conditionally. Delivery to him, or to his agent as such, is necessarily absolute, and the instrument takes effect thereupon, discharged of any condition on which the delivery was made : Cal.* 6056 ; Dak.* Civ. C. 608. (D) Though a grant be not actually delivered into tlie possession of the grantee, it is yet to be deemed constructively delivered (1) where the instrument is, by the agreement of the parties at the time of execution, understood to be delivered, and under such circumstances that the grantee is entitled to immediate delivery ; or (2) where it is delivered to a stranger for the benefit of the grantee, and his assent is shown, or may be presumed : Cal.* 6059 ; Dak.* Civ. C. 6fl. (E) Redeliveriug a grant of real property to the grantor, or canceUing it, does not operate to retransfer the title : Cal.* 6053 ; Dak.* Civ. C. 610. § 1564. Seal, (a) 111 many states all deeds must be sealed by the party ex- ecuting them (see § 1589) : N.H. 135,3 ; Vt. 1927 ; R.I. 173,3 ; Ct. 18,6,1,5 ; N.Y. 2,1,2,137 ; Ind.'^ 2919 ; Mich. 5652 ; Wis. 2203 ; Md. 44,3 ; Mo. 674; Ore. 6,1 ; Wash. 2312 ; Wy. 1882,1,1 ; S.C. 1775 ; Fla. 32,1. So, all bonds or powers of attorney to convey real estate : Ind. 4925. (B) But, in many states, (1) the use of private seals'" is absolutely abolished : 0. 4 ; 1884, p. 198; 1883, p. 79; Ind. 2999; lo. 2112; Kan. 21,6; Neb. 1,81,1; Tenn. 2478 ; Tex. 4487; Dak. Civ. C. 623 ; Mou. G. L. 11G3 ; Miss. 993. (2) The word seal, or the letters L. S., is unnecessary ti any instrument : Ky. 22,2 ; Nev. 1883,39. (3) A seal is not necessary to convey the legal title to land so as to enable the grantee lo sue at law: Ala. 2948. (4) The use of a seal or scrawl or other semblance of a seal by any private person in making an instrument does not in any way affect it or vary the rights of the parties : 0. ; lo. ; Kan. ; Neb. ; Ky. ; Tex. ; Dak. ; Mon. ; Miss. 995. (5) Official and court bonds are valid without a seal : Miss. 996. (6) Except as importing consideration (see Title VI.), there is no difference between sealed and unsealed instruments* (except as to the time limited for commencing suits thereon; see Part IV.) : Ky.= 22,3; Tenn. ; ^ Tex.<^ 4488; Cal. 11932; Ore. Civ. C. 743,746 ; Miss.^ 993-4. And for other cases of contracts concerning personal property, see Title VI. Notes. — « But see below, in B. * As to corporations, see Part IV. <^ There would seem to be no difference, even as to consideration, in the noted states. § 1565. Form of the Seal. And in many states (1) a scrawl or other device may be affixed by way of private " seal, and the instrument will take effect as if sealed: KJ. Bvid. 52 ; Ohligns. 1 ; 111. 29,1 ; Mich. 5699; Wis. 2215 ; Minn. 40, 31; Va. 140,2; 15,9; W.Va. 1882,143,15; Mo. 662; Cal 11931; Ore. Civ. C. 742 ; CoL 3121 ; Wash. App. p. 11, § 3 ; Ida. 922; Wy. 1882,1,24; Uta. C. Civ. P. 10 and 1189 ; C. L. 6 and 652 ; Ga. 5 ; Miss. 994; Fla. 162,87 ; N.M. 2742,2771. So, in a few, the letters L. S. or the word seal : Ct. 19, 11,17 ; Ida. ; Uta. (2) All writings which import on their face to be under seal are to be taken as such, and have effect as if sealed : Ala. 2194. (3) A seal of a court, corporation, or officer may be an impression upon the paper, as well as upon wax, or a wafer affixed : N.H. 1,10; Mass. 3,3; Me. 1,6; 198 FORMALITIES OF CONVEYANCING. Vt 17; EI. 24,14; Ct. 19,11,17; N.Y. Civ. C. 29 ; 0. 1884, p. 198 ; Mich. 2 ; AVis 4971 ; To. 45 ; Minn. 4,1 ; Kan. 104,1 ; Va. 15,9 ; W.Va. 1882,143,15 ; N.C. 3765 Ark. 1460 ; Cal. 14,10014,11931 ; Ore. Civ. C. 742 ; Col. Civ. C. 385 ; Wash. 434 Dak. Civ. C. 2130; Ida. Civ. C. 10; O. L. 922; Uta. ; Ga. 5; KM. 659 Ariz. 3. And the same is true of a private seal, in Rhode Island, Connecticut, Ohio, and Idaho. Definitions. A seal is a particular sign made to attest in the most formal manner the execution of au instrument : Cal. 11930 ; Ore. Civ. C. 741 ; Uta. C. Civ. P. 1188. A public seal must be a stamp or impression, made as above (3) ; but a private seal may be made by a mere wafer or drop of wax, or by a scroll or scrawl, as in (2) : Ore., Ida. A scroll or other sign made in another state or country, and there recognized as a seal, is so regarded in the home state : Cal, Ore., Ida., Uta. Note. — ° For corporate seals, etc., see Part III., and § 1565 (3). § 1566. Witnesses, (a) In many states, witnesses are necessary to a deed even (it would seem) to make it valid between the parties : N.H. 135,3; Ct. 18, 6,1,5 ; 0. 4106; Mich. 5658 ; Wis. 2216 ; Minn. 40,7 ; Neb. 1,73,1 ; Md. 44,3; Ore. 6,10 ; Wash. 2312 ; Wy. 1882,1,8 ; Uta. 617 ; S.C. 1775 ; Ga. 2690 ; 1885,84; Fla. 32,1 and 16 ; La. 2234. (B) In others, they are only necessary when there is no acknowdedgment : N.Y. 2,1, 2,137 ; N.C. 1215 ; Ark. 650 ; Tex. 554 ; Ala. 2146. So, in most states, a deed executed without witnesses might be valid as between the parties, or except as against purchasers (so expres.sly stated in New York), that is, witnesses are only necessary in order to prove the deed for record, and consequently, if the deed, be acknowledged, there would, as before, be no need for witnesses;. (see §§ 1580-1): Mass. 120,12; Me. 73,18; Vt. 1945; N.Y. 2,3,12; 2,1,2,136; N.J. Conveijances, 13; lo. 1959; DeL 83,14 ; Va. 117,2; AV.Va. 1882, 149,2 ; Ky. 24,15 ; Tenn. 3811 ; Cal 6161; Col. 213 ; Dak. Civ. C. 648 ; Ida. 1874-5, Conveyances, 11. Compare §§ 1570,1571. (C) But in other states, witnesses are not necessary in any case, even for proof; though a deed may be proved by attesting witnesses : E.I. 173,8 ; Pa. Deeds, etc. 10 ; Ann. Dig. 1877-8,3; 111. 30,24; N.C. 1246,(9). The number of witnesses required, is in most states, two : N.H. ; Vt. ; Ct. ; Pa. ; O. ; Mich. ; Wis. ; Minn. ; Va. ; W.Va. ; Ky. ; Tenn. ; Ark. ; Tex. ; Ore. ; Wash. ; S.C. ; Ga. ; Ala." 2160 ; Fla. ; La. ; in others, one : Mass. ; Me. ; N.Y. ; N.J. Con- veT/ances, 4: ; III; lo. ; Neb.; Md. ; Col; Ida.; Wy. ; Uta.; Ala." 2145; three, if the party is blind : La. But where the grantor cannot write, f)r signs by mark, there must be one more witness than is required above: Ala.; and the same would result from the provisions of § 1023, in other states. Note. — " In Alabama, one witness is required in any case, there being no acknowledgment, as in A ; two are required when the deed is jjroved, or when the jiarty cannot wiite. (Com2)are § 1023.) § 1567. The Attestation. (A) Witnesses attest (I) the execution : N.Y. 2,1,2, 137 ; Cal. 11935 ; Ore. Civ. C. 747 ; Ala. (2) So, in others, they attest the signing and sealing: 0. 4106; Mich. 5732; Fla.; the delivery:" N.Y., Mich., Fla. (B) It is in most states sufficient if the grantor achiovdedge that he executed the deed in their presence : 0. ; Ark. ; Tex. ; Cal. 11935; Ore. ; Col. See also § IGOI. (C) The witnesses must sign at the grantor's request : Cah, Ore., Col. ; and in his presence : Col., S.C. See also § IGOl. The date of their subscribing must be stated with their signatures, if after the time of exe- cution: Ark. ACKNOWLEDGMENT. 199 For citations, see also § 15GG. Note.— " Perhaps "execution" includes delivery, as used in (1). Ci'. § 1562. See also in Art. 159. § 1563. Foreign Deeds. By ordinary law, deeds executed out of the State, in- tended to affect real estate within it, must be executed according to its laws ; and so expressly in Wash. 2316; Wy. 1882,1,10. But in some states, a conveyance executed in another state (or even, in 0., 111., Wis., Minn., Kan., Neb., Ore., Fla., in a foreign country) according to the laws of such state (or country), may be valid within the State: Ct. 18,6,1,7; 0. 4111 ; 111. 30,20 and 22 ; Mich. 5659,5724,5661; Wis. 2218,2220; Minn. 40,10 ; Kan. 22,25 ; Neb. 1,73,6 ; Ore. 6,11 and 13 ; Fla. 32,16 and 17. In others, deeds, etc., and proofs or acknowledgments of the same executed in a foreign country and in accord with the laws of the State, may be made in the language of such country, and when accompanied by a sworn translation into English of the same by the recorder of land titles in the country where recorded, be recorded and received in evi- dence as if originally in Euglish : Ky. 24,37 ; Mo. 677 ; Col. 219. § 1569. . Special Kinds of Deeds. Contracts of sale of land or any interest th(3rein must in Michigan be executed in presence of two witnesses, who shall subscribe their names thereto as such, and the vendor named in such contract and executing tlie same may acknowl- edge the execution thereof before any judge or commissioner of a court of record, or before any notary public or justice of the peace within the state ; and the officer taking such acknowledg- ment shall indorse thereon a certificate of the acknowledgment thereof, and the date of making the same, under his hand : Mich. 5709. When the vendor named in the contract has ceased to be bound in law by the provisions of the contract, and is entitled to a release therefrom, the vendee named in said contract, his heirs or assigns shall, when requested by said vendor, execute a discharge of said contract in the same manner as now provided by law for the discharge of mortgages, and for a refusal to so dis- charge he shall be subject to the same penalties as are provided for a refusal to discharge mortgages (§ ]9()2) : Mich. 5713. But no contract for sale of land is deemed invaUd because not acknowledged or recorded : Mich. Art. 157. Acknowledgment. § 1570. Necessity for. (a) Commonly, a deed must be acknowledged by the grantor (or proved — see Art. 159) in order to be recorded : KH. 135,3 and 10 ; Mass. 120,5 ; Vt. 1927 ; R.I. 173,4 ; N.Y. 2,3,4 ; 2,1,2,137 ; 2,3,16 ; KJ. Convey- ances, 13 ; Pa. Deeds, etc. 10,76 ; Ind. 2933 ; 111. 30,28 ; Mich. 5707 ; Wis. 2232 lo. 1942 ; Minn. 40,32 ; Kan. 22,9,19 ; Neb. 1,73,2 and 17 ; Del. 83,14 ; Va, 117,2; W.Va. 1882,149,2 ; N.C. 1885,147,3 ; Ky. 24,15 ; Tenn. 2850 ; Mo. 691 Ark. 660 ; Cal. 6161 ; Ore. 6,22 ; Nev. 246 ; Col. 217; Dak Civ. C. 623 ; Wy 1882,1,1 and 26 ; Ga. 2706; Miss. 1215 ; Fla. 32,6 ; La. 2234,2253 ; Ariz. 129 ; D.C. 440. See also § 1631. (b) But in several states, it might seem that a deed which is not duly (§ 1566) witnessed must be acknowledged in order to have any effect whatever even as between the parties: Me. 73,17 ; Ct. 18,6,1,5 ; Ind. 2919; Mich. 5658 ; Minn. 40,1 ; N.C. ; Tenn. 2811 ; Mo. 674 ; Ark. 650 ; Tex. 554 ; Ore. 6,1 ; Nev. 230 ; Ida. 1874-5, Conveyances, 4:-, Mon. G. L. 180 ; Wy. ; Uta. 617,631 ; Ala. 2145-6 ; Fla. 32,9 ; Ariz. 2247. But the courts would probably hold such unacknowledged deed to be valid, at least as against tlio grantor, as in § 1571. And if witnessed, but not acknowledged, it has no effect until duly (Art. 158) proved : Me., Ct., Mo. 200 FORMALITIES OF CONVEYANCING. So, all deeds of gift must be acknowledged or proved and recorded within two years, or they are absolutely void : N.C. 1252. (C) In a few, a deed must (by the terms of the statute) be acknowledged in all cases whether witnessed and proved, or not : 0. 4106 ; Md. 44,1 ; Wash. 2312 ; N.M. 2752. (D) In South Carolina, there is no acknowledgment ; but proof is necessary for record : S.C 1777. § 1571. Unacknowledged Deeds are commonly, in states mentioned under § 1570 A, like all imrecorded deeds, valid (1) only as between the parties : N.H. 135,4 ; Mass. ; Vt. 1931 ; E.I. 173,4 ; Pa. Deeds, etc. 76 ; Tex. 549. See § 1611. (2) They are valid except as against purchasers for value without notice : N.Y. 2,1,2,137; Ky. 24,8; Miss. 1209,1215; and as against creditors : Ky., Miss. An act which is not authentic through any defect of form or incompetence of the officer, avails as a private writing, if signed hy the parties : La. 2235. For other states, see §§ 1570,1610,1611. § 1572. Effect. In most states, a conveyance duly acknowledged or proved (see below, and in Art. 159) may be read in evidence without further proof: KY. 2,3,16 ; Civ. C. 935 ; N.J. ConvcT/ances, 4 and 16 ; 111. 30,35 ; Mich. 5685 ; lo. 3659 ; Kan. 22,26 ; Neb. 1,73,13 ; Mo. 696 ; Cal. 11951 ; Ore. 6,22 ; Nev. 257 ; Col. 216 ; Ida. 1874-5, Conve7ja7iccs, 29 ; Civ. C. 931 ; Mon. G. L. 205 ; Wy. 1882, 1,17; Uta. 623; Ariz. 2273. So, in two others, of a certified copy: lo. ; Pa. Deeds, 74. See § 1625. But such acknowledgment, etc., is not conclusive; but may, in several, be rebutted : Mich.; Mo. 698; Ark. 666; Ariz. 2275; as if a witness be shown to have been in- competent : N.Y. Civ. C. 936 ; Mo. 699 ; Nev. 259,260 ; Ariz. 2276. But the acknowledgment or proof with proper certificate of a deed does not make it evidence unless duly recorded: Del. 83,16 ; except as to the private examination duly taken and certi- fied of a married woman, which remains valid although the deed upon which it is taken is not recorded : Del. § 1573. Manner. If there is more than one grantor, the acknowledgment need only be made by one of them : Mass. 120,6; Me. 73,17 ; Pa. Deeds, etc. 10 and 74 ; Del. 83,3. The officer must make known the contents of the deed to the grantor making acknowledg- ment: N.J. Conveyances, 4. Except where specially so provided, an acknowledgment need not be taken in the county where the deed is executed : Del. 8.3,7 ; and so in all other states. An acknowledgment may he made by power of attorney first proved in the superior court : Del. 83,3. Acknowledgment is made by the grantor's appearing in person before the officer (§ 1582) and stating that he had executed the deed for the consideration and purposes therein mentioned : Ark. G56; Tex. 4308. § 1574. Form. In a few states, all officers authorized to take the acknowdedgment or proof of deeds are required to keep a record of the same ; and such records are public records : Tex. 4324-8 ; Nev. 315. See also Evidence, in Part IV. § 1575. Foreign Deeds. A conveyance of real estate situated without the State may be read in evidence without further proof, (1) if ackuowlcdijed and proved in the manner prescribed for conveyances within the state : N.Y. 2.3,27; (2) or in tlio manner prescribed by the laws of any other of the United States where the subject land is situated (if duly authenticated) : N.Y. § 1576. The Certificate. Generally, a certificate of the acknowledgment (or proof; see § 1599) must be appended " or indorsed by the officer taking it : Mass. 120,6; Me. 73,23; N.Y. 2,3,15; N.J. Conveijances, 4: ; O.«4106; Ind. 2950; 111. ACKNOWLEDGMENT. 201 30,24 ; Mich. 5658 ; Wis. 2216 ; lo. 1958 ; Minn. 40,8 ; Kan. 22,11 ; Neb. 1,73,12 ; Md. 44,12; Del. 83,8 ; Va. 117,3; W.Va. 1882,149,2; 1883,13; N.C. 1246; Ky. 24,15-17 ; Teun. 2855 ; Mo. 678 ; Ark. 654; Tex. 4311 ; Cal. 6188 ; Ore. 6,10 ; Nev. 246 and 233 ; Col. 210-2 ; 220 ; Wash.* 2320 ; Dak. Civ. C. 648 ; Ida. 1874-5, Conveyances, 6 and 19 ; Mou. G. L. 182 ; Wy. 1882,1,8 ; Uta. 221,633 ; Ala. 2158 ; Miss. 1209 ; Fla. 32,14 ; N.M. 2752 ; Ariz. 2249 ; D.C. 442. So, probably, in all states, by implication. Except when acknowledged before the register of deeds, no such certificate is neces- sary : Va., W.Va., Ky. Such certificate is, in many states, expressly made a prerequisite for record : Mass. 120,5 ; Me. ; N.Y. 2,3,16 and 34; KJ. Conveyances, 13 ; Mich. 5673 ; Wis. 2232 ; Minn. 40,20 ; Kau. 22,19 ; Neb. 1,73,13 ; Va. ; W.Va. ; Ky. ; Nev. ; Wash.* 2321; Ida.; Mon. G. L. 195; Uta. 646; Ala. 2160; Miss. 1215; La. 2253 ; N.M. 2761 ; Ariz. 2262 ; but the same would probably be implied in all the states above mentioned. Notes. — "It must be on the same sheet as the instrument. ' Only when taken in a foreign country. § 1577. Form of Certificate. The certificate must, in all the states above men- tioned, be signed by the oiHcer making it. And in many, the seal of the officer must be annexed if he have one : Ind. 2950,2999 ; lo. 1961 ; Minn. 72,11 ; Kan. 22,15 ; Ky. 24,16 ; Mo. 679 ; Ark. 652,654; Tex. ; Cal. 6193 ; Nev. 233 ; Wash. ; Dak. Civ. C. 666 ; Ida. 1874-5, Conveyances, 6 and 19 ; Mon. G. L. 182 ; Uta. 633 ; Ariz. 2249 ; D.C. 442. For citations, see also § 1576. And, if taken out of the United States, an official seal is necessary in all cases : Ark. 633. See also § 1582, notes -^ and ^. But in one, the seal of the officer before whom the acknowledgment of deeds is taken is no longer necessary ; the seal is, however, declared to be prima facie evidence of the proof or acknowledgment : Pa. Deeds, etc. 18-19. It is no objection to the record of a deed that no official seal is appended to the recorded acknowledgment or proof, if when it purports to have been taken by an officer having au offi- cial seal, there be a statement in the certificate that it is made under his hand and seal of office ; and such statement shall be presumptive evidence that the seal was attached to the original certificate : Neb. 1 ,73,20. § 1578. Content of Certificate." In many states, (A) no acknowledgment of any conveyance can be taken without proof or knowledge by the officer taking it of the identity of the person making it : N.Y. 2,3,9 ; 111. 30,24 ; Mich. 5726; lo. 1958 and 1963; Kan. 22,11 ; Neb. 1,73,38; Tenn. 2860; Mo. 680; Ark. 655; Tex. 4309 ; Cal. 6185 ; Ore. 6,16 ; Nev. 234; Col. 212; Dak. Civ. C. 659 ; Ida. 1874-5, Conveyances, 7; Mon. G. L. 183; Uta. 634; Fla. 32,10; N.M. 2754; Ariz. 2250. The same would probably follow in other states from the words " personally known to me," etc., in the certificate* (Wis., Del., Teun., Ala., D.C), or from the following provision. The certificate must state that the identity of the person making the acknowl- edgment was known or proved to the person taking it : N.J. Conveyances, 4 ; Tenn. 2855 ; Mo. 681 ; Nev. 235 ; Col. ; Ida. ih. 8 ; Mon. G. L. 184; Uta. 635 ; Ala. 2158 ; Miss.^ 1220; N.M. 2754; Ariz. 2251 ; D.C. 442. If the clerk is not acquainted with the person wishing to make the acknowlcde;ment, he files the in.strument, waiting on the record the date and reason of postponement; and then witliin twenty days the person may produce witnesses to prove his identity ; and the deed so acknowl- edged after such proof will take effect from the first filing : Tenn. 2860. 202 FORMALITIES OF CONVEYANCING. So, in several, (b) the certificate must set forth substantially all the above matters required to be done or proved, to make the acknowledgment effectual : N.Y. 2,3,15 ; N.J. ; 111. ; Mich. ; Mo. 681 ; Ark. 655 ; Uta. 635 ; Fla. 32,14 ; KM; Ariz. Thus, the name of the witness who proved the grantor's identity must be inserted : Ic, Tex., Nev., Ida., Mou., Uta., Ariz. The name and official character of the officer taking the acknowledgment : Md. 44,14. The time of acknowledgment : Md. It must state that the grantor acknowledged the instrument to be his free act and deed : lo., Kan., Md., Nev., Ida., Mon., Uta., Miss."" In other states, this would be implied from the provisions of § 1576. In one, the officer taking the acknowledgment must, if the grantor signs by mark, or he have good cause to beheve that the etiect of the deed is not fully known to the grantor, explains the contents and purport of the deed ; but failure to do so does not invahdate it : Ind. 2948. Notes. — " For certificates of deeds by married women, see Section II. '> Cf. also § 1579. ' Only when taken in a foreign country. § 1579. Statutory Forms for the certificate are provided in several states : — (1) Before me, E. F., this day of , A. B. acknowledged the execution of the annexed deed (provided the deed be witnessed and signed by two attesting witnesses). Ind. 2947 ; Mich. 5732. (2) State of } Before me , on this day personally appeared , known to me County of i [or, proved to me on the oath of ] to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same (for the purposes and consideration therein expressed, in Missouri, Arkansas, Texas, Nevadii). [Seal.] Given under my baud and seal of office, this day of . A. B. Mo. Forms, 108; Ark. Forms, No. 144 ; Tex. 4312 ; Cal. 6189 ; Dak. Civ. C. 666; Ariz. 2252-3. (.3) State of , County, ss. Personally came before me this day of , 18—, the above [or, within] named A. B. and C. D. bis wife [or, if an officer, adding the name of his office] to me known to be the persons who executed the foregoing [or, within] instrument and acknowledged the same. . [Insert designation of officer taking acknowledgment ] Wis. 2217. (4) Personally came before me , C. D. [and E. F. his wife ; see Division II.], known to me personally [or, proved upon oath of G. H.] to be such, and severally acknowledged this indenture to be their deed. Del. 36,8 ; 83,9. (5) > On this day of , A.d. , personally appeared before me P^' [title of officer] in and for , A. B., personally known [or, satis- factorily proved by the oath of C. D., a competent and credible witness for that purpose by me duly sworn] to me to be the person described in, and who executed the foregoing instrument, and who acknowledged to me that he executed the same freely and voluntarily, and for the uses and purposes therein mentioned. Nev. 236-7; Ida. 1874-5, Conveyances, 9-10; Mon. G.L. 185,186; 1881, p. 1, § 2 ; Uta. 636,637. (G) State of . } I [name of officer and title ] do hereby certify tliat [name of grantor, County of . S :^nd wife if acknowledged by her] personally known to me to be the same person whose name is subscribed to the foregoing instrnment, appeared before me tliis day in person, and acknowledged that he signed, sealed, and delivered the said instrument as his free and voluntary act, for the uses and purposes therein set forth. Given under my hand and seal this day of -. Signature. [Seal.] 111. 30,26. (7) On this ■ day of , 18—, befjre me personally appeared A. B., to me known to be the person described in, and who executed the foregoing instrument, and acknowledged that he executed the same as his free act and deed. Minn. 1883,99,1 ; Mo. 1883, p. 20, § 1. (8) State of , county of . I hereby certify that on day of , in tlie year , before the subscriber [description of officer] personally appeared and acknowledged the foregoing deed to be his act. And if taken out of the State, to the above is added : — ACKNOWLEDGMENT. 203 In testimony whereof I have caused the seal of the court to be affixed [or, have affixed my official sealj this day of , A. d. . Md. 44,78 and 80. (9) County of , to wit : I [description of officer] for the county aforesaid, in tlie state of , do certify that E. F., whose name is signed to tlie writing above, beariug date on the day of , has acknowledged the same before me in my county aforesaid. Given under my hand this day of . Va. 117,3; W.Va. 1882,149,2; 1883,13. (10) State of . ) I [description of officer] hereby certify that whose name is County of . ) signed to the foregoing conveyance, and wlio is known to me, ac- knowledged before me on this day, that being informed of the contents of the conveyance, he executed the same voluntarily on the day the same bears date. Given under my hand this dav of , A. D. 18 — . A B . Ala. 2158. (11) State of . ) Personally appeared before me [description of officer] the within- County of . S ^'" named A. B., who acknowledged that he signed and delivered the foregoing instrument on the day and year therein mentioned. Given under my hand this day of • , A. D. . Miss. 1-218. And generally, no deed of land situated in the State is deemed defective because of any informality or imperfection of acknowledgment, if it shall sufficiently appear by such certificate that the person making tlie same was legally authorized to take siK'li acknowledgment, and that the grantor was personally known to him, and he or they personally appeared before him, and acknowledged such deed to be their free act and deed : Mich. 5726. And if such deed was executed out of the State, it shall be sufficient if the certificate under seal of office of the clerk or other proper certifying officer of the court of record of the county or district within which such acknowledgment was taken, is appended, that the officer taking the acknowledgment was, at the date thereof, such officer as he is therein represented to be : Mich. § 1580. Effect. The certificate is prima facie evidence of the facts therein contained : Wash. 2321. Compare ^ 1572,1625. § 1581. Foreign Acknowledgments, or proofs, of conveyances intended to have eflect in the State, and (A) taken within the United States, may (1) be taken and drawn either according to the laws * of the home state or of the foreign state, and will be valid : Vt. 1946 ; Ct.*^ 18,6,1,7 ; N.Y.^ 1858,259,1-2 ; 0. 4111 ; 111. 30,20; Wis. 2218; Kan. 22,25; Ore. 6,12. (2) In others, they must be taken according to the laws of the home state : N.J. Co7ivei/ances, App. 5 ; Ky. 24,16-17 ; Wash. 2316. (3) In others, they must be taken according to the laws of the foreign state : Neb. 1,73,4; Wy. 1882,1,9. (4) Or of the United States : Ky. 24,40 ; 1884,209. Compare §§ 1568,1583. (B) So, in several, conveyances acknowledged in a foreign country, to be recorded within the state, may be acknowledged either according to the laws of the home state or of such foreign country : " 0. ; 111. 30,23 ; Wis. 2220 ; Minn. 40,10 ; Kan. ; Fla. 32,17. The same rules respectively apply to the certificates : Vt. If a foreign conveyance is executed and acknowledged according to the laws of such country, the certificate of acknowledgment shall certify that fact : Wis. 2220. Compare also § 1583. Notes. — <^ This provision is not to be extended so as to affect the officers having jurisdiction to take the acknowledgment, contrary to § 1582. * But it is only so valid when both the grantor and the officer taking it are dead. « The act ot 1884,32 would, however, imply a doubt as to this. § 1582. The Officer, (a) Within the State, acknowledgments may be made (1) before any justice of the peace : N.H. 135,3 ; IMass. 120,0 ; Me. 73,17 ; Vt. 1927 ; EI. 173,3 ; Ct." 18,6,1,5 ; Pa." Deeds, 10 and 27 ; 0. 4106; Ind.« 2933 ; 111.* 204 FORMALITIES OF CONVEYANCING. 30,20 ; Mich. 5658 ; Wis. 2216 ; lo. 1955 ; Minn."--^ 72,11 ; Kan. 22,9 ; Neb." 1, 73,3 ; Md.«' '"-' 44, 8-9 ; Va. 117,3; W.Va. 1882,149,2 ; 1883,13 ; KC."-^-" 1246 ; Mo."' ' 676 ; Ark. 651 ; Cal.^- ' 6181 ; Ore. 6,10 ; Nev.« 231 ; Col.^ 210 ; Wash. 2315 ; Dak.' Civ. C. 656 ; 1885,1 ; Ida.«-^ 1874-5, Convetjances, 5 ; Mon.' G. L. 181 ; Wy. 1882,1,8 ; Uta.«-^ 220 ; Ga." 2706 ; Ala. 2155 ; Miss. 1217 ; Fla. 32,16 ; La. 2253 ; N.M."'^ 2753 ; Ariz."-^ 2248-9 ; D.C. 441. So, in one other, before any two justices of the peace : Del."' '^ 83,3. (2) Before any notary public : N.H. ; Mass. ; Me. ; Vt. ; ™ E.I. ; Ct.'' ; N.Y.* 1859, 360,1 ; Pa. Deeds, etc. 35; O. ; Ind. ;' 111. ;^ Mich. ; Wis. ; lo. ; Minn. ;'''-^ Kan. ; Neb. ;« Del. 36,2 ; Va. ; W.Va.; N.C. ;«•« Tenn. ^ 2852 ; Mo. ; Ark. ; Tex. 43U5 ; Cal.;« Ore.; Nev. ; Col. ;^ Wash. Civ. C. 655; Ida. ;"-^ Mon. ; Wy. ; Uta. ;"-^ Ga. ;« Ala. ; Miss. 1884,80 ; Fla. ; La. 22-34 ; N.M.^ 2774 ; Ariz.^ 2193,2248 ; D.C. [Note. — Tlie courts herein below referred to are named according to the table in § 551 ; but where capital letters are used the particular name in such state is employed.] (3) Before the judge (or clerk, in Ohio, Indiana,^ Illinois,^ Wisconsin, Arkansas, California,'* Dakota,"-^ Wyoming, Mississippi,") of any court of record : Ct.," 0., Ind.,' 111.," Mich., Wis., Cal.,- Dak.,"'" Wy., Ga. So, before the jndge (or clerk, in Iowa, Kansas, Missonri, Nevada, Idaho," Mon- tana,^'" Utah," New Mexico," Arizona,") of any court having a seal: lo. ; Kan.; Mo.; Nev.; Ida.;" Mon.;"-" Uta." 632 ; N.M. ; " Ariz." Before the judge (or clerk, in Neb. ;° W.Va ; N.C. 1885,188) of any court : R.I. ; Neb. ; " Del. ;" Ore. Civ. C. 893. Before any court commissioner: Pa. Ann. Dig. 1875-6, Deeds, etc., 7; Wis. ; Minn. ;«'-^ any commissioner in chancery of a court of record : Va. ; any commissioner of a court of record : Mich. ; " before a woman appointed iov the purpose : " Me. (4) Before the jndge (or clerk : Minn.,"--^ Cal., Col.," Wash., Uta.," Ala.) of the supreme court: N.Y. 2,3,4; N.J. Conveyances, 4; Pa. Deeds, etc., 23; Minn.;"-^ N.C." 949,1246; Ark.; Cal. 6180; Ore. ; Col. ; Wash.; Uta.;" Ala.; Miss." Before supreme court commissioners : N.Y. (5) Before the Judge (or clerk: Ct. 1878,29; 1881,4; 111.;" Minn.;"'-' Va. ; N.C. ; " Tex. ; Col. ; " Wash. ; Uta. ; " Ga. ; « Ala. ; Fla.) of superior courts : N.Y. (or the district court, in New York City, 1882,410,1391); Minn.;"--^ Md.« 44,8-9; Del.;" N.C.;" Ark.; Cal. 6180, Amt. ; Col.; Wash.; Ala.; Miss.;" Fla; before a commis- sioner of the Superior Court : Ct. ; " before a judge of the Court of Common Pleas : N.J., Conveyances, 5; Pa. Deeds, etc. 24,25; or the clerk: N.J. 1885,133. (6) Before the chancellor or judge of the court of chancery : N.Y., N.J., Del., Ala., Miss. ;" or before the clerk of such court : Ala. ; or before a master in chancery : Vt., N.J., in., Mich. (7) Before the judge (or clerk : Va. ; N.C. ; " Ky. 24,15 ; Tenn. 2851 ; Tex.) of any county court : N.Y.," Tex., Ore., Col." (8) Before any judge (or clerk or register, in Vermont, Minnesota,"' -^ Utah") of pro- bate : Vt. ; 0. 526 ; Minn. ;°'^ Md. ;« Wash. ; Uta. ;» Ala. ; before a surrogate : N.Y, 1884,309. (9) Before the judges of police courts : 0.1787. (10) Before the judge of any United States court of record : Ct.,« D.C. ; or the clerk thereof: Col." 211. (11) Before any mayor of a city: R.I. ; N.Y. ; Pa." (in Philadelphia only) Deeds, etc. 26; 0.; Ind. ;« Kan.; Dak.;«'" Uta. ; « before any city clerk : Kan.; before aldermen: Pa. (in Philadelphia only) Deeds, etc. 27 ; Uta. « ; before the mayor of Wilmington : Del. 73,29. (12) Before any town clerk : Vt." 2689 ; R.I. ; Ct.« (13) Before the presiding officer of any municipal corporation : 0. (14) Before any county cl(>rk : Vt., 111., Wis., Kan., Col.,"-" Dak.," Wy. ; any county sur- veyor : 0. ; or auditor : Iud.,« Minn.,"'-^ Wash., Dak. ; "• » any member of the county board of comrnissioners : Miss. (15) Before any county recorder or register of deeds : Pa." Deeds, 28 and 31 ; Ind. •/ ACKNOWLEDGMENT. 205 Miun.;"-^ Kan.; Va.-^ 117,2; W.Va. ; Ky. ; Tex.; Cal. ; ° Nev. 2995; Col. ; » Dak. » Ida. 1874-5, p. 563, § 22 ; Mon. G. L. 395 ; Uta. ; "-^ La. ; Ariz. 1883,50; before any city recorder : N.Y. ; Pa. (in Philadelphia only) ; Uta." (IG) Before any United States coininissiouer : III. ; » Dak.; Wy. 1882,1,8; 1884,29,1. (17) Before any connnissiuner of deeds : N.H. ; N.Y. : " N.J. Conveyances, 60. (18) Before any commissioner of the school fund : Ct." (19) Before any state senator : R.I. (b) If the deed be acknowledged without the State, but within the United Stated, before (1) any justice of the peace: N.H. ; Mass. ;' Me.; Vt. 1946; E.L 173,9 ; Ind. •/ 111.'' 30,20 ; Mich.'' 5659 ; Wis.'' 2218 ; lo.'' 1956 ; Minn."-'''^ 40,7 ; Kan.'' 22,10 ; Va. 117,3 ; W.Va. ; N.C. ;" Ore." 6,11 ; Nev." 231,313; Mon. ;''•" Miss." 1219; Fla.;"'^ D.C." 44L (2) Any notary public : KH. ; Mass. ; Me. ; Vt. ; E.I. ; JST.J.'''' Conveyances, 59 ; Tsi.^ Deeds, etc. 32 ; 0. 124 ; Ind. ; ' 111. ; ^ Mich. ; " Wis. ; " lo. ; Minn. ; "• "-^ Kan. ; Md.^ 44,10 and 80 ; Del. V. 17,212 ; Va. ; W.Va. ; ^ KG. ; ^ Ky.^ 24,16 ; Tenn.'' 2853 and 2856 ; Mo. ; Ark. ■/ Tex. 4306 ; Cal.'* 6182 ; Ore. ; " Nev. 313 ; Col." 218 ; Wash.^ 2317 ; Dak. Civ. C. 657 ; Ida. 1884-5, p. 87, § 1 ; Mon. ; ^ Uta.^ 632 ; Ala. 2156 ; Miss. ;^ Fla. ;"•'' KM.^ 2741 ; Ariz. •/ D.C." (3) Before any commissioner of the home state, in the foreign state (see Part IV.) : N.H. ; Mass. 18,11 ; 120,6 ; Me.^ 110,2 ; Vt. ; E.L ; Ct. ; N.Y."'"' ^ 1850,270,2 and 5 ; N.J.^ Conveijances, 7 and 45 ; Pa.^ Deeds, etc. 38 ; 0. 4111 ; Ind. ;^ 111." 26,1 ; Mich.; Wis. ; lo. ; Minn.-^ 72,13 ; Kan. ; Neb."-" 1,73,4 and 37 ; Md." 44, 10 and 15; Del.'' 83,10; V. 13, C. 28; Va. ; W.Va. ; N.C. 632; 1250; Ky.;'' Tenn.;'' Mo. ; Ark.;-^ Tex. ; Cal. ; Ore. ; Nev. ; Col. ; " Wash. 2316 ; Dak. ; Ida. •/ Mon. ;" Wy." 1882,1,9; Uta.;-^ Ga.;" Ala.; Miss.; Fla.^ 32,12 and 16; Ariz. ^ 2184. (4) Before any person authorized by the laws of such foreign state to take the acknowledgments of deeds therein : Vt. ; Ct. ;** N.Y." 1848,195,1-2 ; N.J." Convey- ances, App. 5 ; Pa." Attys. 7 ; Deeds, etc. 29,36,37 ; 0. 4111 ; Mich." 5724 ; Wis. ; " Neb.;" CaL;''Ore.;" Col;" Wash.;" Dak.; Wy.;" Fla."-" (5) Before the judge of any court of record : N.J. ;"•* Pa." Deeds, etc. 20,21 ; Ind. ; " Mich. ; " Wis. ; " lo. ; " Minn. ;«-"'/ Kan. ; " Del. ; " N.C. ; Tenn. ; " Cal. ; " Ore. ; " Col. ; " Dak. ; " Ga. ; " Ala. ; Fla. ; "' " D.C. ; " or the clerk thereof : Ind. ;"- * Wis.;" lo.;" Minn. ; «' "• -^ Kan. ;" Del. ;" N.C. 640,1246,1250 ; Tenn. ; Tex. ;" Cal. ; " Col. ; " Wash. ; " Dak. ; " Wy. ; " Miss. ; " Fla. ; "- " N.M." (6) Before the judge of any court having a seal: Md." 44,13; Ky. ;" Mo.;" Ark. ; " Nev. ; " Ida. ; " Mon. ; " Uta. ; " N.M. ; " Ariz. ; " or the clerk thereof : Ky. ; " Mo.;" Ark.;" Nev.;" Ida;" Mon.;" Uta.;" N.M.;" Ariz." (7) So, before a judge of the snpreme court of such foreign state: N.Y.," N.J., Pa.," IlL, Minn.,"^ "--^ Miss. ; or the clerk thereof: 111.," Minn."-''-^ (8) Before a judge of any court : K.I. (9) Before a judge of the superior court in such state : N.Y.," N.J., Pa.,*' 111., Minn.,"'"'-^ Miss. ; or the clerk thereof: 111.," Minn. ;«'''>-^ or a judge of the "court of common pleas" therein : N.J.," Pa.," 111. (10) Before a judge of the probate court therein : Pa. ; " or of any county court : 111. (11) Before any chancellor therein: N.J, Del.," D.C. ;'' before any connnissioner in chan- cery of a court of record : Va. ; before any master in chancery : Pa. Ann. Dig. 1877-8, Deeds, etc. 4; Mich.,'' Wis.'' (12) Before the clerk of any court : Va., ^V.Va., Ky." (13) Before a judge of the United States Supreme Court : N.Y; " N.J. ; Pa. Deeds, 16 ; 111. ; Minn. ;«■<',/ Md. ;-^ Miss. ; or a clerk thereof: 111.," Minn."' '^■■f (14) Before a judge of the United States Circuit Court : N.Y," N.J., IlL, Del.," Miss. ; or a clerk thereof : IlL," Del.," CoL," Ala. 206 FORMALITIES OF CONVEYANCING. (15) Before a judge of the United States District Conrt : N.Y.,"N.J., Pa.," 111., Minn., "•''•^ Del.," Ala., Miss., Fla. ;«•''• '^ or a clerk thereof: 111.," Minn.,"-''-^ Del.," Col.," Ala. (16) Before the judge of any United States court having a seal : Mo.," Ark.," iS^ev.." Ida.," Mon.," Uta.," N.M.," Ariz. ;" or before the clerk thereof: Mo.," Ark.," Nev.," Ida.," Mon.," Uta.," N.M.," Ariz." (17) Before the judge of any court of record of the United States : Md.,-^ Cal.," Dak., Ala., N.M. ; or before the clerk thereof: Md., Mo., Cal.,« Col.," Dak., Ala., B.C^ (18) Before the mayor of any city: N.Y. 1845,109,1 ; N.J. ; Pa." Deeds, etc. 12; hid. ; « 111. ; " Del. ; " N.C. ; " Ky. ; " Ark. ; " before the mayor of Philadelphia : N.Y. 1829,222,1 ; (.f Baltimore: N.Y. (19) Before any county clerk : 111., Wy. ; ° " recorder : " Ind.,« W.Va. ; " auditor : " Ind." (20) Before any commissioner appointed by court in the home state to take such foreign acknowledgment: N.C. 1258; before any United States commissioner : III.," D.C. ; '^ before " any magistrate : " Mass., Me., Vt. (21) Before the Secretary of State : Ky.," Col." In two, if the party making the deed be absent in the military or naval service of the United States, it may be acknowledged before any colonel, lieutenant-colonel, or major of tlie army, or any navy officer not below the rank of lieutenant-commander, etc. : R.I. 173,3; Tenn. 2885. So, in one other, before any officer above the rank of major: Pa. Deeds, 33; before the commanding officer of any military post of the United States not within the State : Wis. (C) In foreign countries (1) before any minister, envoy, or charge d'afiaires of the United States resident in and accredited to snch country : N.H. ; Mass. 120,6 ; Me. ; Vt. 1946 ; RI. 173,9 ; N.Y. 2,3,5 and 7 ; 1859,360,3 ; 1829,222,1 ; 1803,246,1; 1865,425,1; N.J. Convei/ances, 8 ; Pa.^ ib. 17 and 30 ; Ind.^ 2933, 2937'; 111.^ 30,20 ; Mich. 5661 ; Wis. 2220 ; lo. 1957 ; Minn. 40,10; Neb. 1,73,6 ; Md.* 44,11 ; Del. V. 13, C. 28 ; Va.^ 117,3 ; W.Va. ;^ N.C. ; '' ' Ky.^ 24,17; Tenn.^ 2854; Mo.; Tex. 4307;' Cal. 6183; Ore. 6,13; Nev. 231 ; Wash. 2319; Dak. Civ. C. 658 ; Ida. ; Uta. -^632 ; Miss. 1220 ; Fla.'''^ 32,13 and 17; Aiiz.-^ (2) Before any United States consul (or vice-consul) so resident therein : N.H.; Mass.; Me.; Vt. ; RI.;Ct. ;'' N.Y. 1829,222,1 ; N. J. ; Pa. ;^ 0.4111; Ind.;^ 111. ;^ Mich.; Wis.; lo.; Minn. ; Kan. 22,10; Neb.; Md.;* Del.; Va. ;'' W.Va. ; ^ N.C. ; *• ^ Kv. ; ^ Tenn. ; ^ Mo. ; Tex. ; Ore. ; Nev. ; Col. ; ^ Wash. ; Dak. ; Ida.; Mon.n.881, p.^l, § 1 ; Uta. ;^ Ga.^ 2706 ; Miss.; Pla.;'^-^ N.M.'^'^ 2774; Ariz. ; ^ D.C. (3) Before any diplomatic or commercial or consular agent of the United States so resident, etc : K.I. ; N.Y.'' 1863,246,1,2,3,6 ; 1883,80 ; lo. ; Neb. ; Md. 1882,63 ; Del.« 83,10 ; Va. ; ^ W.Va. ; ^ N.C. ; *• ^ Mo. ; Tex. ; Cal. ; Wash. ; * Dak. ; Ala.* 2156. (4) Before any secretary of legation so resident, etc. : 111. ; ^ lo. ; Ky. ;^ Miss. ; D.C. 444. If no consul in the place, before any civil officer with two subscribing witnesses, and a certif- icate of a consul resident in the county to the officer's identity, etc. : Fla. 32,15. (5) Before any notary public : Mass. ; Me. ; Vt. ; Ct. ; '^ Pa.'' Deeds, etc. 32 ; Mich, i^ Wis. ; ^ Minn. ; ^ Kan. ; Neb. ; ^ Md. ; Tenn. ; <> Mo. ; ^ Tex. ; Cal. ; Ore. ; ^ Nev. ; Dak. ; Ida. ; Mon. ;'' Uta. ■/ Ala. ; Fla.''' " 32,17 ; N.M. ; "' ^ Ariz. / D.C.^ (fi) Or justice of the peace : Mass., Vt., Ct.," Kan.'' (7) Or United States commissioner in such country : Mich., Wis., Minn., Neb., Ore., Nev., Uta., -^ Fla. (8) Or a commissioner of the home state therein : N.H. ; Mass. 18,15 ; Me. ;^ Vt; E.I.; N.Y.^'<^ 1875,136; Va. Deeds, etc. 46 ; 0. 4111; 111.26,1; Mich.; Md. ;'■ Tenn. ;'' Tex. ; Cal. ; Ore. ; Ida. ; Wy. ; Ga. ; Fla.'' (9) Or a commissioner of a court, specially authorized by commission: N.Y. 2,3,8. ACKNOWLEDGMENT. 207 (10) Before any magistrate : Mass., Vt. (11) Before any magistrate or officer authorized by the laws of such country to take acknowledgments : Vt., 111.,'^'-^ Mich.,''-^ Wis., lo.,'' Ark.,» Wy.'^ (12) Before the judge of any court of record : N.Y.'^' " 1870,208 (in Canada only) ; Del. \o Cal. ; Col. ; " Dak. ; Ala. ; Miss. ; N.M. /- ^ or clerk thereof : Del.,'' Wy. (13) Before the judge of any court having a seal : 111., Kan.," Mo.,^ Ark.," Nev.," Ida.," Uta.," N.M.," Ariz. ;" or clerk thereof: Nov.," Ida.," Uta.," Ariz." (14) Before the judge of any court: N.J.,'' D.C. ; '^ or any clerk of court : Va. ; " or other proper officer of court : Kan.,^' W.Va.," Wash. (15) Before the judge of any supreme court : N.Y. (in Canada) ; or of any superior court : Ky." (IG) Before a chancellor or master in chancery : D.C."^ (17) Before the mayor or chief magistrate of a city or town : N.Y." (in Canada and Great Britain only), N.J.,'' 111.," Del.," Va.," W.Va.," N.C.," Ark.," Col,," Wash., Ala., Miss., N.M." Before the mayors of London, Liverpool, Duhlin, and Edinburgh : Fla. (18) Before the chief magistrate of a county : Wash., Ala., Miss. ; or county clerk : Wy. In case such minister, consul, etc., be the grantor, it is sufficient if the deed be executed be- fore two witnesses with his official certificate and seal : R.I. 173,10. Notes. — " But such officer can act only within tlie district for which he was appointed. * In towns only. '^ In tlie county where tlie land hes. '^ Sucii officer's certificate must be further certi- fied to, according to § 1583. « A double certificate, as in d, ia required ; but only wlien the certifying otficer took the acknowledgment out of tlie county where the land lies, -f An official seal is not necessary in all cases (see § 1577), but necessary in tiie noted cases, if the officer have a seal. » Such seal is absolutely necessary. See, however, in § 1577. ^ The acknowledgment is good, whether such officer taking it has qualified or not. * But such officer must also be authorized to take ac- knowledgments by the laws of such foreign state. * It does not appear that it is necessary for such consul, etc., to be resident in or accredited to the country where the acknowledgment is taken. But qncBre. '■ But such officer must be specially appointed by the governor of the home state to take such acknowledgments. " No seal necessary. " In the county where the grantor or subscribing witness resides. ° Such officer must certify that it is taken according to the law of such state, etc. § 1583. Double Certificate. In cases where the certifying officer's certificate must be further certified, such further certificate may be made (1) by the clerk of the superior court for such county : N.Y. 1848,195,2 ; 1858,2.59,2 ; N.J."-^ Conveyances, 59 ; Ind. 2934-5 ; 111. 30,20 ; Md.'^ 44,9 ; N.C.* 1246 ; Nev.* 231 ; D.C. 443 and 445 ; (2) by the clerk of some court of recoi'd of the county : N.J. Conveyances, App. 5 ; Pa. Attor- neys in Fact, 7 ; lud/ 2935; Mich. 5726,5060 ; Wis. 2219 ; Minn. 40,9 ; Kan. 22,10; Neb. 1,73,5; N.C. ;-^ Ore. 6,12 ; Nev. ; Col.; Wash. 2317; Dak.* Civ. C. 666 ; Wy. 1882,1,9 ; Miss. 1219 ; Fla. 32,18. For citations, see also § 1582. (3) By the county clerk : Cal. 619 1 ; Col. ; '' Mon. ; Wy. ; (4) by the clerk of the County Court: N.J. : (5) by the " clerk of such court : " N.Y.<^ 1870,208,1 ; Teun.2857; Ga.; Fla.; N.M. 2774. (6) By "the proper authority : " lo. 1956. (7) By the judge of such court : Tcnn. 2858-9 ; (8) in the case of a state commissioner, taking an acknowledgment under ^ 1582, B (3) or C (5), this further certificate must be sub- joined under hand and seal of the Secretary of State ; N.Y. 1850,270,4; 1875,136.2; Neb. 1,73,36 ; so, in case of a justice of the peace, under B (1) : Minn. ; or a notary public, B (2) : Col. (9) In the case of a judge of a court of record taking it, the governor of the state may append such second certificate : Tenn. (10) In cases where the acknowledgment, etc., was taken before a judge (§ 1582, A 7) or commissioner of deeds (§ 1582, A 17), and is to be recorded in a different county, a certifi- cate under the hand and seal of the county clerk must be appended : N.Y. 2,3,18. (11) If in a foreign country, such second certificate may be made by any consul or minister of the United States : 111. 30,22 ; lo. 1957 ; Fla. Such further certificate must generally be attested by seal : N.Y., N.J., Ind., 111., 208 FORMALITIES OF CONVEYANCING, Mich., Wis., To., Minn., Kan., Neb., Md., Tenn., Cal, Ore., Nev., Col., Wash., Mon., Wy., Ga., Miss., N.M., D.C. This second certificate must certify (1) to the official character of the officer taking the first : N.Y. ; N.J. ;" Ind. 2950 ; 111. ; Mich. ; Wis. ; lo. ; Minn. ; Kan. ; Neb. ; Md. ; N.C. ; Tenn. ; Cal. ; Ore. ; Nev. ; Col. ; Wash. ; Dak. ; Mon. ; Wy. ; Miss. ; N.M. ; D.C. (2) To his signature (or seal, in case 8, above) : N.Y., Ind., Mich., Wis., Minn., Neb., N.C, Cal., Ore., Nev., Col., Wash., Dak., Wy., Ga. (3) To the fact that the deed is executed or acknowledged according to the laws of the foreign state or country : N.Y. j'' 111. ;^ Wis. ;* Minn.* 40,10 ; Neb. ; Ore. ; Wash. ; Wy. ; Fla. A certificate to tins last effect must always be appended, even when the acknowledgment is taken by a state commissioner or clerk of court : Wy. (I) To the fact that the officer had authority to take acknowledgments by the law of the state or country where taken : N.J.,"' '^ Pa., 111.,^ To., Col. But in many states, such double certificate is never necessary, (except in case 8) if the first certificate be officially sealed : Ind., Wis., Minn., Neb., Xev., Wash., Fla. Notes. — " In tlie case of certificate by a judge of a court of record. * Tliis is only neces- sary when the proof, etc., was taken according to the laws of the foreign state, under §§ 1581,1602. " In cases where the acknowledgment, etc., was taken by a judge of a court in Canada, under § 1582, C 12. '' In the case of a notary. <" In cases under B 5. / Only when the acknowledgment, etc., wns made in another state (§ 1582, B). s Wiien made by an officer in a foreign country under § 1582, C 11. ^ Wlien made by a justice out of the county ; see § 1582, note ". § 1584. Miscellaneous Provisions. When any of the officers mentioned in $ 1.582 are authorized by law to appoint a deputy, the acknowledgment or proof may be taken by such deputy in the name of his principal : Cal. 6184 ; Uta. 632. Compare ^ ]()23, § 1585. Amending Acts. (Special amending acts — i.e. fixing a particular date, or applying to a special class of instruments — are not inserted. See Ct. 1876,24; 1877,3; 1879,72; 1875,24; 1877,74; 1884,32; N.Y. 1882,16 and 52 ; 1884,304; N.J. 1878,42; Con- veyances, 50-56,64; App. ih. 7; 1879,190; 1882,52; 1883,109; 1884,72; 1885,209; Pa. 1881,41; Deeds, etc. 41,49-60; Minn. 123,1-54; Kan. 22,31 ; W.Va. 6.5,13; N.C. 1885, 147, 2 ; Code, 1259-1263 ; Ark. 679-682 ; Cal. 6207 ; Ore. 1876, p. 27, $ 1 ; Nev. 232 ; AVash. 2318,2:322 ; Wy. 1884,5,4 ; Uta. 1880,23 ; Fla. 32,19 ; N.M. 2741 ; Ariz. 2285.) In a few states, when a person authorized to take the acknowledgment of deeds takes and certifies one after the expiration of his commission, the acknowledgment is good as if done before such expiration: Me. 73,24; Ct. 1877,41 ; 1879,72; N.J. 1885,30; Minn. 1883,91. In one. all acknowledgments and proofs of deeds are good after ten years, notwithstanding errors or imperfections, if the deed was duly recorded : N.J. Conveyances, 57 ; 1883,161. So, in many, all acknowledgments or proofs made according to the laws in force at the time may be recorded, though the law has been changed or a code enacted since : N.Y. 2,3,22 ; Mich. 5700 ; Wis. 2240 ; Mo. 2299 ; Tex. 4352 ; Cal. 6206 ; Ore. 6,36 ; Nev. 267-8 ; Dak. Civ. C. 669-670 ; Ida. 1874-5, Conveyances AlA'^', Mon. G. L. 217-8 ; Wy. 1882,1,25. The legality of the execution, acknowledgment, proof, form, or record of any instru- ment is determined by the laws in force at the time : Tex. 4351 ; Cal. 6205. All deeds previously to 1859 executed with a scroll instead of a seal are valid : Ind. 2998; Wis. 2206 Amt. (1883); Minn. 123,23 (1875) ; 1885,235; N.M. 1743 (1882) 2772. So, all deeds executed without a seal previous to 1879 : Ct. 1875,24 ; 1879,72 ; Ind. (1859) ; Neb. 1,81,2; Ore. 1878, p. 82. All deeds executed prior to 1877 purporting to convey real estate, but which are defective in form are in Arizona recorded in a separate book, and are notice to all persons interested: Ariz. 2285. All deeds executed before 1876 are valid, though with only one witness, if the land is held in good faith by the grantee in such deed or those claiming under him : Ct. PROOF. 209 1876,24; Minn. 1881, Ex. Sess. 77 (1881). All deeds made before 1877 acknowledg.-.l before a justice in the state who had not jurisdiction in the town or county wliere taken, are valid: Ct. 1877,3; 111. 30,21 (1851) ; Md. 1880,256 (since 1867); W.Va. 1882,149,11; 1883,13 (since 1883). All deeds made before 1879 are valid, thongh there was no subscribing witness: Ct. 1879,72; Ore.; or though he was interested: Ct. ; Minn. 123,27(1877). All deeds executed and proved, etc., (before 1884) according to the law of the state or country where made are valid, whether recorded or not : lo. 1966 ; 1884,203. All deeds acknowledged or recorded before 1872 are valid, notwithstanding any defect in the exe- cution, acknowledgment, etc. : lo. 1967 ; Ark. 684 (1883) ; Nev. 314 (1871) ; N.M. 2773 (1874). So all deeds acknowledged before 1880, although the officer omitted a seal in appending the certificate: lo. 1968; Md. 44,25 (1878); W.Va"; Ark. (1883). And though no second certificate to the certificate of a justice (§ 1583) was appended : Md. All deeds executed before the code are valid and binding notwithstanding any defect or informality therein, if it sufficiently appear by the contents of the deed what was in- tended : W.Va. 64,11 ; Tenn. 2894. Note. — "Of deeds so acknowledged before a notary. Art. 159. Proof. § 1590. Necessity. In order to be recorded, or to have effect as evidence, a deed mu.st be proved : S.C. 768. See for other states, §§ 1570,1572. An unacknowledged deed, if duly proved according to this article, is as effectual as if acknowledged : N.H. 135,10 ; and so, probably, in all the other states. § 1591. Grantor Living, (a) In many states, it seems that no deed can be proved unless the grantor refuses or fails (§ 1594) to acknowledge it: N.H. 135, 10; Mass. 120,9; Me. 73,18 and 20; Vt. 1939; RI. 173,6; Ct. 18,6,1,9; Mich. 5666 ; Wis. 2228 ; lo. 1959 ; Minn. 40,13 ; Kan. 22,12 ; Neb. 1,73,7. (B) But in other states any imacknowledged deed may be proved as in this Article : N.Y. 2,3,4 ; N.J. Conveyances, 4 and 7 ; Pa. Deeds, etc. 10 ; 111. 30,24 ; Del. 83,3 ; Ky. 24,15 ; Mo. 682 ; Ark. 657, So, in all other states not enumerated in A. § 1592. Process." To prove a deed, there must generally (except in R.T., Pa., 111., Md., N.C.,) be the requisite number of attesting witnesses, as siJecified in § 1566. But it seems proof may be made by a witness who did not subscribe : To. 1959; Kan. 22,14.* And a deed without witnesses may nevertheless be proved by proving the handwriting of the grantor, as in § 1595 : R.I.= 173,8 ; Pa. Ann. Dig. 1877-8, Deeds, etc. 3 ; 111 30,24 : xMd. 1882,77 ; N.C. 1246 (9). (A) Notice of the intent to prove and time of hearing must in a few states be given to the grantor (1) by seven days' personal service with a copy of the deed annexed (for citations, see § 1591) : Mass. ; Me. 73,21 ; Vt.; Mich.; Wis. ; Minn. ; (2) by fifteen days' personal service; but no copy of the deed is necessary: N.H.'' 135,10; (3) by service of a warrant for examination of such grantor: R.I. 173,6. (b) Proof of a deed may generally he made, either at home or abroad, (1) be- fore the same officers respectively who are by .^* 1582 authorized to take the acknowledgment of a deed (for other citations, see § 1582): N.V. 2,3,4; N.J. Conveyances, 4 and 7 ; Pa, Deeds, 10 ; Ind. 2936 ; 111. 30,20 ; lo. ; Kan, '22,13; Neb. 1,73,7; Del. 83,10; NO. 1246; Kv. 24,15; Tenn. 2865-6,2869; Mo. 676 ; Ark. 651; Tex. 4305 ; Gal; Ore. 6,17 ; Nev. 231; Col. 213; Ida. 1874-5, Gim- veyances, 5 ; Mon. 1881, p. 1, § 1 ; G. L 181 ; Uta. 632 ; Ga. 2707; Ala. 2155-6; Miss. 1217 ; Ariz. 2248. 14 210 FORMALITIES OF COXVEYANCING. (2) It is made "according to the rules of the common law:'"' Ct. 18,1,6,9; Ind. 2936 ; (3) before a justice of the peace of the county (or town, in Rhode Island) (a) where the land lies: Mass. 120,9 ; Me.-^ 73,21 ; Vt.'^ 1939; Mich. 5666 ; Wis. 2228; Minn. ; (/3) where the grantor resides : KH. ; Mass. ; Me. ;'^ Vt. ;'' R.I.^ 173,6 ; Mich. ; Wis. ; Mum. ; [y) where the subscribing witness resides : N.H., Mass., Me.,"^ Vt.j^Mich,, Wis., Minn. (4) Before any county court in the state, or any court out of the state, or any officer authorized under § 1582 in foreign countries: Va. 117,3, (5) In the Superior Court of the state : Del. 83,3. (6) Before a notary public in the county (a) where the land lies: Me. ; <^ O) where the grantor resides: Me.'' (7) Before a coiniiiis.^ioner of the home state, in foreign states or countries: Me. 110,2. (8) Before any judge in tlie town where the grantor dwells : R.I." (9) Before the clerk of the County Court in the state, and any officer authorized under ^ 1582 in foreign countries : W.Va. 1882,149,2 ; 1883,13. (10) Before any person competent to administer an oath ; or, -without the State, be- fore a commissioner of the State or special commissioner ; or a clerk of a court of record, or a notary public, under official seal, and the notary's signature must be certified by a clerk of a court of record of the county ; or, out of the United States, before a United States consul or vice-consul: S.C. 768. Except, proof may not be made, in the home state, before a notary public : Tenn. In South Carolina (there being no acknowledgment) proof is made by the affidavit of a sub- scribing witness taken beft)re some officer, within the State, competent to administer an oath, or before a commissioner specially appointed by the Court of Common Pleas of the county in which the instrument is to be recorded ; or, if taken without the State, and within tlie United States, before a commissioner of deeds of the State, or the clerk of a court of record, certified under his official seal, or before a notary public, who shall affix his official seal and accompany the same witli a certificate as to Iiis official cliaracter from a clerk of a court of record of the county in wliich the affidavit is taken ; or, if without the United States, before a United States consul or vice-consul : S.C. 1777. Notes. — " For citations, see § 1582. ^ And so, probably, in a few otlier states where there is no statutory provision for attcstini^ witnesses, in § 156t5. '^ Only in cases where the grantor re/uses to acknowledge. '^ If lie be resident' in the State. § 1593. Method, (a) Generally, (1) only one attesting witness need be pres- ent at the liearing and testify, even in states which require more than one witness to tlie deed : N.H. 135,8 : Mass. 120,9 ; E.I. 173,8 ; N.Y. 2,3,12 ; N.J. Conveyances, 4 ; Pa. Deeds, etc. 76 ; Mich. 5G67 ; Wis. 2228 ; lo. 1959 ; Minn. 40,11 and 14; Del. 83,3 ; N.C. 1885,147,3 ; Ky. 24,15 ; Mo. 682 ; Ark. 657; Tex. 4314; Cal. 6195 ; Ore. 6,17 ; Nev. 238 ; Col. 213; Dak. Civ. C. 662 ; Ida. 1874-5, Convey- ances, 11 ; Mon. G. L. 187 ; Uta. 638 ; Ga. 2707 ; Ala. 2159 ; Ariz. 2254. (2) But in other states, all must give evidence (unless dead, etc., as in § 1595) : Va. 117,3; W.Va. 1883,13; Tenn. 2850. (3) In others, the laws are ambiguous (L e., the officer making proof may require both witnesses): Me. 73,18 and 21: Vt. 1940. If, however, only one witness reside in the State, he may prove the execution, the hand- writinij of tlie other witness being proved by some other person : Tenn. 2862. (B) (Compare also §§ 1()01,1()()4.) The subscribing witness must state (1) that he knew tlic person descrilied in, and who executed, the conveyance : N.Y. ; 111. 30,24 ; Neb. 1,73,7; Mo. 684; Cal. 6197; Ore.; Nev. 240; Dak. Civ. C. 662; Ida. ib. 13; Mon. O. L. 189; Uta. 640 ; Ariz. 2256. (2) That he saw the grantor sign, or heard him acknowledge that he signed the deed: Me. 73,22; Neb.; Mo.; Ark.; Tex. 1; Col. " For the pur|)oses and consider- ation therein stated:" Tex. Or, that the grantor executed the deed in his presence and in the presence of the other subscribing witnesses on the day of date ; and that ho and the other witnesses attested the same in presence of the grantor and of each other: Ala. Or, in others, merely that such grantor executed it : Vt. 1940 ; N.J. ; Pa. Deeds, etc. 11 ; lo. ; Cal. ; Nev. ; Dak. ; Lla. ; Mon. ; Uta.; Ariz. "As his voluntary act or deed:" N.J. And " delivered it :" lo. PROOF. 211 (3) That be siibscribed his name as witness thereof in his presence : 111., Mo., Ark., Tex., Cal., Col., Duk., Ida., Mon., Uta., Ariz. '- At the request, or by consent, of the grantor:" 111., Ark., Tex., Nev., Col., Uta. (4) He must also prove the attestation of the other witness : Ky. (5) He must state his own place of residence : Ore. (G) The grantor's signature only need be proved : R.I. 173,8 : Tenn. 2865,2867. (C) A deed may also be proved by any of the parties who executed it : Cal. G195. So, in Rhode Island, tlie process is by examination of the grantor, and commitment in case he still refuse to acknowledge : R.I. 173,6. § 1594. Grantor Dead or Incapable, (a) Deeds may be proved as above, ex- cept that notice to the grantor is of course unnecessary (1) when the grantor has died without making acknowledgment : N.H. 135,8 ; Mass. 120,7 ; Me. 73,18 ; Vt. 1938 ; Ii.I. 173,8 ; Pa. Deeds, etc. 11 ; Mich. 5664 ; Wis. 2227; lo. 1959 ; Minn. 40,11 ; Kan. 22,12 ; Neb. 1,73,7. (2) Or has left the State : N.H., Mass., Me., Vt., R.I., Mich., Wis., Minn. Or when- ever his attendance cannot be procured : Pa., lo., Kan., Neb. (3) Or when he has become insane : N.H. In other states (see § 1591, B, for citations), proof is, of course, made in the same way as if the grantor were living, there being no distinction between the two cases. (B) The process of such proof is generally the same as in §§ 1592,1.593. But in some states proof can in this case only be made before certain specified officers or courts, and not before all mentioned in § 1582. Thus, (1) only before courts of record : N.H., Mass., Me., Mich., Wis., Minn., Kan. (2) Before justices of the peace: Pa. Deeds, etc, 11. (3) Only before a judge of a supreme or superior court : Vt,, R.I. The testimony of only one subscribing witness is necessary, even in those states where more may be re- quired under § 1593 : Me., Vt. And in Rhode Island the process is by oath of one or more witnesses, as in other states ; and not by examination of the grantor, as in § 1593, C. Or, if there are no witnesses, proof is made as in $ 1595 (see also in $ 1592). § 1595. "Witnesses Dead, (a) When the subscribing witnesses to a deed are all dead, the deed may commonly be proved (1) by evidence of the genuineness of the grantor's signature and of that of at least one subscribing witness : N.H."'**'^ 135,9; Mass.°'**'^ 120,8 and 10; Me.«'*>^ 73,19; Vt.«'*'<^ 1938,1943; KY. 2,3, 30-31 ; 111. 30,25 ; Mich."'*-^ 5665,5668 ; Wis.«'^''^2227 ; Minn. "•^-'^ 40,12 and 15 ; Kan.«'*''' 22,18; Neb. 1,73,10; N.C."' * 1246 ; Ky. 24,15; Mo. 682 ; Ark. 658 ; Tex.''' ^•'^•'^ 4317; Cal."'*-^ 6198-9 ; Ore."' ^-'^ 6,18 ; Nev. 238 ; Dak.«' *• " Civ. C. 663 ; Ida. 1874-5, Convej/ances, 11; Mon. G. L. 187; S.C. 1777 and 768; Ariz. 2254. (2) The signatures of all attesting witnesses must be proved : N.H. ; N.J."''''*' Con- vei/ancefi, 6; S.C. (3) Only the witnesses' signatures need be proved : Ga. 2708. (4) Either the grantor's or the witness's signature ma}' be proved: Md. 1882,77; N.C. 1246(8); Uta. G38 ; Miss."-^ 1221. (5) Evidence, first of the witness's signature must be offered ; and if that cannot be had, of the grantor's : Pa."' * Deeds, etc. 15. (B) And deeds may also be proved as above respectively, (I) when the witnesses are insane : N.H. ; "' '"' <^ Mass. ; "•"• ' N.J. ;"•*'<' Tenn. 2868 ; Tex. ;«•*•'' S.C. ; Ga. (2) When they have been convicted of infamous crime: Tex,"'*'** (3) When they are ab- sent from "the State : N.H. ; "•^' '^ Mass. ;"'*'= Me. ;"' * Vt. ;"'*'<^ N.J. ;«■''■<' Mich. ;"•*•' Minn. ;"■"•= Neb. ; N.C. ; "' * Ky. ; Tenn. 2864 ; Tex. ; "• *• '■ "^ Cal. ; «■ * <* Ore. ; «• ' S.C. ; Ga. ; Miss."''' When they conceal tliemselves so as to avoid the subpoena: Cal.,"'*'" Dak."' "' "^ When their attendance " cannot be bad : " N.H.,"'*'' = Pa.,"' * III, Kan., Mo., Ark., Tex., Nev., Ida., Uta., Ariz. When they are " out of reach : " Mass., Pa. 212 FORMALITIES OF CONVEYANCING. (4) Wlieu their |)lace of residence is uukiiovvn and canni)t be as(!ertaincd by due diligence : Tex.,*"'*''^''' Cal. ,"•*■'' (;>) " When they are otherwise incompetent :" Tex.,"*- '^.<* Ga. " In- sane : " N.J."'*-'' ( County. \ I [name and style of officer] hereby certify that , a subscribing witness to the foregoing conveyance, known to me, appeared before me this day, and, being sworn, stated that , the grantor in the conveyance, voluntarily executed the same in his presence, and in the presence of the other subscribing witness, on the day the same bears date ; that he attested the same in the presence of the grantor and of the other witness, and that such other witness subscribed his name as a n-itness in liis presence. Given under my hand this day of , 18 — . A D . Ala. 2159. (">) State of , > C.mnty of . ^ ^•''• Persmially a)>peared ])rf.ire me [description of officer] the within named C. D., one of the 8ubscril>ing witnesses to the foregoing instrument, who, being first duly sworn, deposoth and saith that he .saw the within named A. B., wliose name is subscribed thereto, sign aud deliver the same to the said C. D. [or that he heard the said A. B. acknowledge that lie signed and de- livered the same to the said C. D.], that he, this deponent, subscribed his name as a witness thereto, in the presence of the .said A. B., and that he saw the other subscribing witness, E. F., flign the same in the presence of the said A. B., and that the witnesses signed in the presence of each other, on the day and year therein named. Given under my hand, etc. Miss. 1218. RECORD. 215 (6) State of , ) Couuty of . ^ Be it remembered that on this day of , 18 — , before me, [description of oflBcer], came and , and upon their oaths stated that the signatures of , the grantor in the foregoing deed, and of , a witness thereto, are genuine, and are in the handwriting of the said and respectively. In testimony whereof I have hereunto set, etc., this day of , 18 — . [Signature.] Ark. Forms, No. 140. § 1605. Appeal from Proof. In two states, the grantor or person interested under him, has an appeal from the court or justice before whom the deed is at first proved; (1) to the County Court: Vt. 1942; (2) to the Supreme Court : R.I. 173,G-7. § 1606. Proof by Action. When the acknowledgment or proof is properly made, but defectively certified, any party interested may obtain a judgment correcting the cer- tificate by action in coui't : Tex. 43.53 ; Cal. 6202 ; Dak. Civ. C. 607. So, any person interested under an instrument entitled to be proved for record may institute an action in court against the proper parties to obtain a judgment proving such instrument : Tex. 4354 ; Cal. 6203 ; Dak. Civ. C. 667. See also in Part IV. Art. 161. Record. § 1610. Necessity for Record. In order to be wholly valid, a deed of real estate (see § 1551) must in all the states be recorded in the proper registry of deeds: N.H. 135,4; Mass. 120,4; Me. 73,8; Vt. 1927; E.I. 173,3; Ct. 18,6,1, 11 ; KY. 2,3,1 ; KJ. Conveyances, 14 ; Pa. Deeds, etc. 76 ; 0. 4134 ; Ind. 2926 ; 111. 30,28 ; Mich. 5683 ; Wis. 2232 ; lo. 1941 ; Minn. 40,1 and 21 ; Kan. 22,19 ; Neb. 1,73,1 ; Md. 44,16 ; Del 83,14 ; V. 16,520,1 ; Va. 117,2 ; W.Va. 64,2 ; 96,5 ; N.C. 1885,147,1 ; Ky. 24,8; Tenn. 2811 ; Mo. 691 ; Ark. 664 ; Tex. 549 ; Cal. 6214 ; Ore. 6,1 ; Nev. 252 ; Col. 215 ; Wash. 2314 ; Dak. Civ. C. 651 ; Ida. 1874-5, Conveyances, 24 ; Mon. G. L. 201 ; Wy. 1882,1,13 ; Uta. 618 ; S.C. 1776 ; Ga. 2705; Ala. 2152; Miss. 1212; Fla. 32,6; La. 2264,2251; D. 2501; N.M. 2761 ; Ariz. 2268 ; D.C. 446. § 1611. Unrecorded Deeds. (See § 1625 also.) A deed, unrecorded," (a) is void as against (1) purchasers* or incumbrancers without notice for value whose deed is duly recorded first : N.Y. 2,3,1 ; 1882,410,1748-9 ; KJ. Conveyances, 14; 1880,171,1-2; 1883,169,3; V^. Deeds, etc. 1Q; Ann. Dig. 1877-8,5 ; 0.4134; Ind.^ 2931 ; 111. 30,30; Mich. 5683; Wis. 2241 ; lo. 1941 ; Minn.^ 40,21 ; Neb. 1,73,16; Md. 44,19; Del 83,17 ; Va. 114,5 ; W.Va. 96,5; N.C. 1885,147; Kv. 24,8; Tenn. 2889,2890 ; Ark. 671; Tex. 549,4.332; Cal. 6214; Ore. 6,26; Ne"v. 254; Col. 215; Wash. 2314; Dak. Civ. C. 671; Ida. il. 26; Mon. G. L. 202; Wy. 1882,1,15; Uta. 620; Ga. 2705; Miss. 120,9 ; Fla. 32,6 and 20; La. 2253 ; Ariz. 2270 ; D.C. 446, U.S. 1878,69. (2) And as against all creditors of the grantor : 111. ; Minn. ; Neb. ; Del. ; Va. ; W.Va. ; N.C. ; Ky. ; Tenn. ; Ark. ; Tex. ; Miss. 1212 ; Fla. ; La. 2266 ; (3) as against a subsequent judgment creditor : N.J., Minn. ; (4) it is fraudulent and void as against subsequent purchasers or incumbrancers for value without notice, even though their deeds be not recorded : 0. 4134 ; 188.5, p. 230 ; Ind. ;<' Ark. ; Fla. ; La. 2253 ; (5) it is void even as between the parties : Md. 44,17-18. So, of a deed of gift not recorded within two years : N.C. (See § 1570.) (b) But it is valid as against (1) the grantor, his heirs, and devisees (as be- tween the parties : N.J., Neb., Tenn., Mo., Tex., Cal., Nev., Dak., Ida., Mon., Uta., 216 FORMALITIES OF CONVEYANCING. Miss., La., Ariz.) : N.H. 135,4 ; Mass. 120,4 ; Me. 73,8 ; Vt. 1931 ; RI. 173,4 ; Ct. 18,6,1,11 ; N.J. ; Ind. 2926 ; Kau. 22,21; Neb. 1885,41,13; Tenn. 2887; Mo. 693 ; Tex. 4332 ; Cal. 6217 ; Nev. ; Dak. Civ. C. 675 ; Ida. ib. 24; Mon. G. L. 200; Uta. 618 ; Miss. 1212 ; La. 2266 ; N.M. 2763 ; Ariz. 2268. Or against (2) persons having actual notice of it : ^ Mass., Me., (I) Ind., Kan., Del., Tenu., Mo., Tex., Cal., Dak.. Uta., Ga., Miss., N.M. ; (3) or against purchasers not for valuable cuusidei-ation : Miss. ; (4) as against all persons, except as in (A) specified : N.J. (C) In Maryland, auy deed, not at first recorded, is valid, when finally recorded, against every cue except persons with prior recorded deeds who have purchased in good faith and for value, if the grautee took possession under the unrecorded deed, from the time of such posses- sion ; but as against all persons who have become creditors before the recording, without notice of such deed, it takes effect only as a contract for the conveyance of land : Md. 44,23-24. Notes. — " i.e., if not recorded within the time limited by § 1615. * This is probably law in other states also. "^ The fact that suuli subsequent purchaser's deed is only a quitclaim makes no difference, eitlier as affecting his good faith or otherwise. § 1612. Creditors and Purchasers, as tlie words are used in this chapter, include all creditors and pin-cliasers wlio but for tlie instrument would have title to the property con- veyed, or a rigiit to subiect it to their debts ; and not creditors and purchasers of the grantor merely : Va. 114,11 ; W.Va. 96,9. A purchaser is not aS'ected by record of a deed or contract made by a person under whom his own title is not derived : Va. 114,12 ; W.Va. 96.10 ; nor by such record made by any person before the date of a deed or ccmtract made to or with such person duly recorded, and from which his title is derived : Va., W.Va. § 1613. Record Office, (a) In all the state.?, there is a land record office in every county (in Rhode Island, Connecticut, Vermont," in every town) : N.H. 135,3 ; Mass. 120,4 ; 24,5 ; Me. 7,1 ; Vt. 1927 : RI. 173,3 ; Ct. 18,6,1,11 ; N.Y. 2,3,1 ; N.J. Conveyances, 14 ; Pa. 'Deeds, 1 ; O.M137 ; Ind. 2931 ; 111. 30,28 ; Mich. 5673 ; Wis. 2232 ; To.* 1941 ; Minn. 8,174 ; 40,1 ; Kan.* 22,19 ; Neb. 1,18,78 ; Md. 44,16; Del. 35,1 ; Va. 114,5 ; W.Va. 1882,149,7 ; N.C. 3650 ; Ky. 24,9; Tenn. 520,-5013; Mo. 3805; Ark. 664; Tex. 4294; Cal. 6169; Ore. 6,23 ; Nev. 252 ; Col. 215 ; Wa.sh. 2314 ; Dak. Civ. C. 651 ; Ida. 1874-5, p. 557, § 1 ; Mon. G. L 200 ; Wy. 1882,1,13 ; Uta. 214 ; S.C. 1776 ; Ga. 2705 ; Ala. 2147 ; Mi.ss. 1209 ; Fla. 32,20 ; N.M. 429 ; Ariz. 122. So, in Louisiana, in every parish : La. 2264. In the District Columbia, one recorder: D.C. 467. (B) Such office is kept (1) by a special officer, in many states, called the register of deeds or of the county : N.H. ; Mass. ; Me. ; N.J.*^ Register, etc. 1 ; Mich. ; Wis. ; Minn. ; Kan. ;* Neb. 1885,41,1 ; N.C. ; Tenn. ; Dak. ; Wy. ; La. ; the recorder : Pa., (>., Ind., 111., To., Del., Mo., Ark., Cal., Nev., Col., Ida., Mon., Uta., La., Ariz., D.C. ; the register of mesne conveyances : S.C. Or such office is kept (2) by the county clerk : « Vt.-^ 1929; N.Y. ; Ill.« 115,1 ; Neb.-^ 1885, 41,2; Te.x. ; Ore. ; Ctd. 578 ; Wy. 28,3,7 ; by the clerk of the superior court for the county: Md. 57,8 ; N.C. ; Ky. ; Mo.' .3828; Ark. 5.151 ; Ga. 2705 ; by the clerk of the Court of Com- mon Pleas: N.J. ; by the clerk of the County Court: Va., W.Va.; by the judge of probate for tlie county : Ala. ; by the town clerk, in each town : Vt.," R.I., Ct. ; by the county audi- tor : Wash. ; by the clerk of the Cliancery Court in the county : Miss. ; by the clerk of the (corporation, Hustings or Chancery Court, if within the jurisdiction of such court : Va. 114,1 ; J877,48 ; by the clerk of the probate court : N.M. Notes. — " So, in Vermont, the deed may be recorded with the county clerk besides the usual record with tlie town clerk : Vt. IA.'jO. * A transfer of laud must also be entered in a transfer reconl book by tlie county clerk, or aurlitor, before bcins recorded by tlie register of deeds ; see § lfi'J.3. *■ In Kssex county only. <* For lands in unorganized places only. « Except in counties over a certain population. RECORD. 217 § 1614. Place of Record, (a) A deed is always (in all states) to be recorded in the county where the hind lies. (For citations, see §§ 1610,1^13 ; also Mass. 24,13 ; Ind. 2952; Neb. 1,73,18; Tex. 4333; Cal 6169; Dak. Civ. C. 651; Ga. 1956.) (B) A conveyance of laud in several counties must be recorded in every county (town, or other record district) where the subject land lies, or (1) it will only affect land situated in the county (town or other record district) where it is recorded: Del. 83,15; Va. 114,6; W.Va. 96,6. So, by implication, in all states. (2) It seems that it must be so recorded, and in each and every county where the land lies, or it is of no eflfect whatever, even as between the parties: Md. 44, 17-18. (3) In Tennessee, the provision is simply that a deed of land conveying several tracts lying in different counties shall (or may) be recorded in each of them : Tenn. 2843. (4) When it contains one tract of land lying in two or more counties, it may be registered in either : Tenn. § 1615. Time of Record, (a) Generally, no deed can take full effect until recorded ; and it follows that record must be made immediately after execution, to be valid against subsequent purchasers who may record their deeds first. This law is expressly enacted in Md. 44,19 ; Tex. 4334 ; La. 2266. And compare § 1611 A. So, in Tennessee, unless proved in a court of equity that the person claiming under the sub- sequent in.strument had notice of the prior one : Tenn. 2074. (B) But in some states, a deed is valid as a recorded deed for all purposes from the time of its execution, (1) if recorded any time within a year from its execution: Del. (but see below) 8.3,14; V. 16,520,1 ; Ga. 2705 ; (2) within six months therefrom : Pa. Deeds, 76 ; Aun. Dig. 1877-8, § 5 (except in Philadelphia) ; .0. 4134; Fla. 32,20; (3) within sixty days : Va. 114,7 ; Ky. 24,14 ; (4) within forty-five days : Ind. 2931 ; (5) within forty days: S.C. 1776 ; (6) within fifteen days : N.J. Conveijances, 14 ; 1880,171,2; (7) within five days: Ore. 6,20; (8) ou the day of execution : Del. V. 17,213,4. And a deed recorded after such prescribed times is valid against subsequent creditors and purchasers for value without notice only from the date of record : 0. ; Ky. 24,22 ; S.C. ; Ga. This is law also in New Jersey, and, probably, in Pennsylvania. (C) But even in the states in B mentioned, mortgages or trust deeds have priority according to record : N.J. Mortgages, 22 ; Pa. Deeds, etc. 103 ; 0. 4133 ; Del. 83,19 ; Va. ; Ky. 24,10. Except, that (1) mortgages to secure the purchase money may be recorded at any time within sixty days : Pa. ; thirty days : Del. 83,21 and 18 ; V. 17.213,1. See also % 1864. And (2) instruments of defeasance within sixty days: Pa. 1881,91 ; Del. ; within ninety days : Ind. 2932. Mortgages recorded at the same time have priority according to their dates : Del. 83,20. (D) In one state, a deed made out of the State is so valid from the time of execution (1) if recorded in the state within twelve months of its execution : Pa. Deeds, etc. 77 ; and in one other, if out of State and in the United States, four months : Ky. 24,14 ; if out of the United States, twelve months : Ky. (E) In Maryland a deed is to be recorded within six months to be valid against existing creditors ; but may be recorded at any time thereafter and have effect against creditors and purchasers from time of such record : Md. 44,16 and 22. (P) In Alabama, conveyances of unconditional estates, or mortgages or instruments in the nature of a mortgage of real property to secure any debt created at the date thereof, are void as to purchasers for a valuable consideration, mortgagees, and judgment creditors without notice, unless the same have been recorded within three months of their date ; and all other con- veyances of real property, mortgages, or deeds of trust to secure any debts other than those specified above, are inoperative and void as to purchasers for value, mortgagees, and judgment creditors without notice, unless recorded before the rights of such purchasers, etc., accrue : Ala. 2166-7. This provision includes absolute conveyances of real property made defeasible by a defeasance or other instrmnent, in which case such defeasance, etc., uuist be recorded according to its character within the proper time, or it will be void as against purchasers for value, mort- gagees, and judgment creditors without notice of the original grantee : Ala. 2168. 218 FORMALITIES OF CONVEYANCING. § 1616. Limitation. No deeds" can be recorded at all if not filed for record (1) within one your of the execution : Del." 83,14 ; Ala.* 2154 ; (2) within two years : N.C." 1252,1204. Mortgages must be filed fitr record within six months of their date : Md. 44,16 and 22. If a ouuveyauce is uot recorded until after ten years from its date, such record is not evi- dence, but only acts as notice to subsequent purchasers and incumbrancers : N.J. Convey- ances, 15. lu North Carolina, all deeds of gift of estates of any nature (i. e., either real or personal) must be proved and recorded witliiu two years from the making thereof or they are void : N.C. 1252. XoTES. " " Deeds " docs not liere inchide written contracts for the sale of hmd. >> It will not be evidence (§ 1G25) unless recorded within such time. <= It includes only deeds of gift, contracts of sale, and leases. § 1617. Efifect of Filing. A deed is deemed to be recorded, and takes effect as a record, in most states, from the time it is filed for record ; i.e., from the time the minute is made on the deed, index, or entry-book, according to § 1618 : Mass. 24,15 ; Me. 7,15 ; 73,28 ; Ct. 18,6,1,11 ; N.Y. 2,-3,24 ; N.J. Conveyayices, 14 ; Pa.« Deeds, etc. 103; 0." 4133; Ind. 2951 ; III 30,30 ; Mich. 5675 ; Wis. 759; lo. 1944; Minn. 8,177; Kan. 22,20; Neb. 1,73,15; Del. 35,6; N.C. 3654 (but queen); Ky. 24,10-11 ; Tenn. 2887; Mo. 693,3817 ; Ark. 670; Tex. 5562,4334; Cal.^6170; Ore. 6,24 ; Nev. 253 ; Col. 215 ; Wash. 2314,2731; Dak. Civ. C. 651 ; Ida. 1874-5, Conveyances, 25 ; Mon. G. L. 201 ; Wy. 28,3,9 ; 1882,1,14 ; Uta. 619; S.C. 769 ; Ala. 2149; Miss. 1213; Fla. 1885,3592; La. 2254,2264; KM. 431 ; D.C. 447 ; U.S. 1878,69. In Delaware, if two or more deeds are filed for record at the same time, they have priority (1) according to their respective dates : Del. 83,20. (2) According to the time of sealing and delivery : D.C. 448. If filed on the same day, the one first recorded has priority, in respect to property in that county affected by it: Va. 114,9; W.Va. 96,8 ; 1882,50. Notes. — "Of mortgages only. * Being duly proved, or acknowledged and certified. § 1618. Entry and Receipt. The register must, in most states, note the day, hour, and minute of tiling (1) on the record : Vt. 2688 ; N.Y. 2,3,24-5 ; 1882,410, 1750 ; N.J. Conveyances^ 2Q-7 ; Mortgages, 17 and 19 ; Minn. 8,177 ; Del. 35,6 ; N.C. 3654; Tenn. 529 ; Mo. 3817 ; Ark. 5561 ; Tex. 4298 ; Cal. 4241 ; Wash. 2731 ; Ida. 1874-5, p. 561, §§ 1-3-14 ; Ala. 2148 ; Miss. 1223 ; Ariz. 134. (2) In the index or entry-book : N.H. 27,5 ; Mass. 24,14-15 ; Me. 73,28 ; Pa. Deeds, etc 2-3 ; Ind. 2951 ; 111. 115,12 ; Mich. 5675 ; Wis. 759 ; lo. 1943 ; Minn. ; Kan. 25,92 ; Neb. 1,18,81 ; Md. 57,10; Ky. 24,33 ; Ark. 5560; Tex. 4297 ; Col. 580 ; ^ron. G. L. 391 ; Wy. 1,3 ; 28,3,9 ; Ariz. 1881,16. (3) On the back of the deed, noting also the liber and folio where it is re- corded : Mas.s. 24,21; Me. 7,15 ; 73,28; Vt. 1735; E.I. 173,5; Ct. 18,6,1,11 ; N.Y. ; N.J. ; Pa. ; 0. 1144 ; 111. 115,11 ; Mich. 5681 ; Wis. 758 ; lo. 1944 ; Minn. ; Kan. ; Neb. 1,73,32 ; 1885,41,5 ; Md. 57,13 ; Del. 35,6 ; N.C." 3654 ; Tenn. ; Mo. 3818; Ark. 670; Tex. 4299; Cal. 4241-2 ; Ore. 6,24; Coh ; Wash. 2732; Ida.; Mon.; Wy. 1882,1,13; Uta. 218 and 221; S.C. 769; Ala.; Miss.; La. 2254 ; N.M. 431 ; Ariz. 134,5 ; D.C. 446, U.S. 1878,69. This entry must be made (1) immediately after filing: N.H. ; Mass. ; Me. ; Ct. ; Pa. ; 0. ; Ind. 59-30 ; 111. ; Wis. ; lo. ; Minn. ; Kan. ; Neb. ; Ky. ; Tex. ; Col. ; Mon. ; Wy. ; Ariz. (2) Within an hour : Me.'' (-3) In the order in which the deeds are re- ceived : Mass. ; 111. ; Mich. 5G75 ; Minn. (4) " Immediately after record : " N.Y. ; 111.; Md. 57,11. In a few states, the recorder is rcijuired to give the person filing a deed for record a receipt, stating the day, hour, and minute of delivery : N.J. ; Pa. ; 0. ; Ind. ; 111. 115,10; Del.; Ark.; Tex.; Ala. 2149; Miss. RECORD. 219 The recorder is to " certify " the time when the instrument was lodged for record : Ky. 24,23. Notes. — " Applies only to mortgages or trust deeds. * i. e., the entry in the index. § 1619. Manner of Record. In most states, it is provided that all deeds shall be recorded in the order in which they are filed for record : N.Y. 2,3,24 ; N.J. Conveyances, 2>2; Ta. Deeds, 3 ; 0.4133,1145; Ind. 5931; 111. 115,9; Neb. 1,73, 15 ; N.C. 3654 ; Tenn. 529 ; Mo. 3817 ; Ark. 5561 ; Tex. 4298 ; Cal. 4241 ; Wash. 2731 ; Ida. 1874-5, p. 561, § 13; S.C. 769; La. 2254; Ariz. 134. " Within thirty days after filing : " Ct. 3,3,3,5 ; S.C. ; within twenty days after : N.C. 3654. If two or more are delivered at the same time, they are recorded in the order of their dates : N.J. See also § 1617. But in other states, the provision is simply that they be recorded as soon as practi- cable or without delay (the entry on the index having effect as a record) : N.J. Convey- ances, 26 ; lo. 1946 ; Del. 35,6 ; N.C. ; » Tenn. ; Mo. ; Ark. ; Tex. ; Cal. ; Wash. ; Ida. ih. 13 : Miss. 1225; La. ; N.M. 431 ; Ariz. They are recorded at length : N.H. 135,3 ; Vt. 1927 ; Ct. ; N.J. ; Mich. 5676 ; lo. 335; Minn. 8,180; Wy. 1882,1,13; Uta. 219. The certihcate of acknowledgment or proof must (probably, in all states) be recorded at length with the deed: Mass. 120,5; Me. 73,23 ; N.Y. 2,3,20; N.J. Ind. 2952; Mich.; Neb. 1,73,14; Md. 44,12; Del 35,6; 83,14; V. 16,520,1 Va. 117,8 ; W.Va. 1882,149,7; Ky. 24,23; Tenn. 529; Mo.; Ark. 664; Tex. Cal. ; Ida. ; S.C. 1777 ; Ala. 2148 ; La. 2253 ; Ariz. So, also, the double certificate mentioned in § 1583 : Neb. ; Tenn. 2838. So, the commission to take testimony of acknowledgment, if any : Tenn. So, all other ac- knowledgments or papers annexed to the deed : N.J., Del., Va., W.Va., Ky., Tenn., Mo., Ark., Tex., Cal., Wash., Ida., Ala., Miss., Ariz. Interlineations and erasures must be noted: Mass. 24,16 ; N.J. ; Mich. 5677 ; W.Va. ; Mo. ; Ark. ; Tex. Maps and plans may commonly be recorded with the deed : Ct. 3,3,3,8 ; N.J. ; Va. ; W.Va. ; Mo. ; Cal. ; Col. 581 ; Wash. 2728 ; Ida. ; Mon. G. L. 389 ; Uta. 217 ; Ala. ; Miss. ; Ariz. The memorandum of livery of seisin made in deed.s of feoffment: S.C. 1780. In all cases where any notice is required, a copy of the notice or advertisement with aflfidavit of service, posting, or publication must be recorded with the deed : R.I. 173,11. Note. — ° Applies only to mortgages or trust deeds. § 1620. Indexes." (a) The records of all deeds must be entered alphabetically in two indexes or entry-books, — one under grantors' names, the other under grantees': N.H. 27,6 ; Mass. 24.22 ; Vt. 2680 ; N.Y. 1843,199,1 ; 1882,410,1752; Pa. Becords, 7 ; Ind. 5931 ; III 115,12 ; Wis. 759-760 ; Minn.* 8,177 ; Kan. 25,91 ; Neb. 1,18,80; Md. 57,9; Del. 35,4; W.Va. 1882,149,7; Ky. 24,33; Tenn. 529; Mo. 3816,3819; Tex." 4300,4301; Cal 4236; Col" 579,580; Ida. 1874-5, p. 558, § 11 ; Mon. G. L. 390, 393 ; Wy." 28,3,8-9 ; 1,1 ; S.C. 769 ; Miss. 1224 ; La. D. 3083; Ariz" 131. So, in many states, an index is to be kept of the names of all the parties alphabet- ically : Me. 73,28 ; Ct. 3,3,3,5 ; N.J. Conveyances, 33 ; 0. 1153 ; Mich. 5682 ; lo. 1945 ; Minn." 8,180; N.C. 3663; Ark." 5563-4; Ore. 6,25; Wash. 2728; Uta. 218; N.M. 434-5. With reference to the liber and folio of the record in all the above states. (B) And in Nebraska, every register must also keep a " numerical " index and record all deeds therein afiVcting the several quarter-sections of land : Neb. 1,18,84-5; 1885,41,7. [So, in many states, there are record laws for the platting of towns.] So, ihe county commission- 220 FORMALITIES OF CONVEYANCING. ers may require the register to keep a " local " index, with a certain amount of space for each quarter-section of land in the state: 0. 1154 ; 111. ; Wis. 762 ; Kan. 25,95. So, in two, the county auditor keeps a record book and index of plats : lo. 948-50 ; Mou. G. L. 392. In several states, there is one index or entry- book for deeds, and (1) a separate one for mortuases: N.Y. 1843,199,1 ; 1882,410,1747 and 1755; N.J. Mortgages, 17; Pa. Ann. Dig. 167^^ Deeds, etc. 1 ; Ind. o938,.5939; Mich. 5674 ; Neb. 1,18,88; Cal. ; Ore.; Ida.; Ariz. (2) A separate book is kept for town lots : Wy. 1,5 ; (3) for mechanics' liens : Mich. 8379 ; Neb. ; Cal. ; Ida. ; (4) for attachments and execution sales : Wis. 761 ; Cal. 4236-7 ; Ida. ; (5) for organizations of corporations (see also in Part III.) : Wis. 763. (6) Separate books are to be kept also for chattel mortgages : Tenu. 529 ; Cal. ; (7) for releases of mortgages : Cal., Ida. ; (8) for powers of attorney : Tenn., Cal., Ida. ; (9) for leases: Tenn., Cal., Ida. ; (10) for marriage certificates : Mo. 3821 ; Cal. ; Ida. ; (11) for assignments of mortgages arid leases : Cal., Ida. ; (12) fur wills : Cal., Ida. ; (13) for official bonds : Mo. 3823; Ark. 5565; Cal.; Ida. ; (14) for notices of lis pendens : Cal., Ida. ; (15) for transcripts of judgments : Cal., Ida. ; (16) for married women's property : Cal., Ida. ; (17) for pre-emption claims : Cal., Ida. ; (18) for instruments relating to personal property : Ark. ; La. 2251 ; D. 2501 . jJoTEs. — "In tlie noted states, this index book is a different book from the entry-hook, required by § 1618 ; but in other states it is the same. ^ 01' the entry-hook. § 1621. Books of Record. In many states, there are separate books of record ; thus, in detail, besides the book for ordinary deeds, there is also a book (1) for mort- gages, trust deeds, or defeasible deeds in the nature of mortgages : N.Y. 2,3,2 ; N.J, Mcrrtgagfis, 17-18 ; 0. 1143 ; Ind. 5933 ; Mich. 5676 ; Minn. 8,180 ; Neb. 1,18,82 ; Mo. 3814 ; Tex. 4304 ; Cal. 6171 ; Ore. 6,23 ; Dak. Civ. C. 652 ; Ga. 267 ; La. 2252. (2) For releases of mortgages and liens : Va. 1884,.'j27,5 ; W^Ya. 1882,49,5 ; (.3) for con- veyances of personalty : Mo. 3815 ; Cal. 4235; Wash. 2727; S.C. 769; Ga. ; (4) for maps and plans : 0. ; Mich. 1473; Kan. 25,93; (5) for conveyances of town lots when the plats are recorded : lo. 1947; (6) for marriage contracts: W^ash. : (7) instruments relating to the separate property of married woman : Wash. ; (8) for marriage contracts and certificates of marriage : Mo., Cal. ; (9) judgments, attachments, and lis pendens : Wash. : (10) for registra- tions of births: Mo.; (11) patents of lands: Wash.; (12) for official bonds: Mo., Cal., Wa.sh. : (13) for mechanics' liens: Neb. 1,18,83; Cal. ; Wash. ; Uta. C. Civ. P. 1064; N.M. 1880,16,8; (14) for leases: 0. ; (15) for apprentices' indentures: Ind.; DeL 35,5; (16) miscellaneous records: Neb. 1885,41,10; Ariz. 130; (17) every class of instruments (§ 1624) must, in a few, be recorded in a separate book : 111. 115,9 ; Minn. ; Cal. 4235; Ida. 1874- 5, p. 558,10. § 1622. Custody of the Deed. Commonly, after record, the deed may be delivered to the person entitled to it: Wis. 758; Kan. 25,92 ; Ya. 117,8 ; W.Va. 1882,149,7; Ky. 24,29 ; Mo. 3818; Ark. 5025,5562 ; Tex. 4299; Cal. 4242; Col. 580 ; Wash. 2732 ; Ida. 1874-5, Conveyances, 14 ; Mon. G. L. 391 ; YV>. 28,3,9 ; Ala. 2148; Ariz. 13-5. . Excei>t that (1) when a deed is recorded more than one year from the date of execution, the recorder is required to keep it in the office, subject to the inspection of all persons for one year after record : ^b). .38-38. And, in several, a deed proved only by handwriting (§§ 1595-7) may be recorded only if the original deed bo deposited in the record office at the same time : N.Y. 2,3,.'«; Cal. 6162; Dak. Civ. C. 649. Wlien a mortgage with the release therein is filed for record, the mortgage is to be retained by the recorder, and not again allowed to be withdrawn : Md. 44,42. The recorder must make a minute in the entry-book of the person to whom the deed was delivered: X.H 27,5; La. 2256. § 1623. Requisites for Record. Commonly, a certificate of acL'nowledgment or proof is necessary. Cf. §§ 157r., 1599, 1570,1592. lint, in Connecticut, an unacknowledged deed (and any instrument intended as a conveyance of lands which by reason of a formal defect operates only as the conveyance of an equitable interest ) may be recorded; and such record operates as notice to all the world : Ct. 18,6,1, la Compare also ^ 1631. RECORD. 221 In a few states, no deed of absolute conveyance can be recorded (1) unless indorsed by the county auditor as having been recorded in the plat-boolv (see $ IGxiU) : 0. J 1.19 ; lo. 1953; Neb. 1,18,86 ; S.C. 247. Or (2) by the county clerk [for tax-i)ur{)osesj : Kan. 22,33 and 3.5. No instrument can be recorded uiih^ss its recitals show whether the grantor or land-owner was married or single, name of husband or wife, whether husband or wife is dead, whether land was separate or community property, whether grantee was single or married, and name of hus- band or wife : Tex. 1879,115,1. No deed can be recorded unless executed, as required by law (Arts. 155,156): Minn. 40,32. [The same Is doubtless law everywhere.] A deed may be admitted to record without ac- knowledgment or proof, but will not have effect as notice according to § 1625': Miss. 1215. § 1624. What may be Recorded." The following instruments (besides ordinary deeds of real estate, as in § 1551) must (for the word may in the several statutes is probably mandatory ; i. e., such an instrument not recorded will only be valid as an unrecorded deed) be recorded :* (1) "all trust deeds and mortgages : N.H. 135,4 ; Vt. 1931 ; R.I. 173,4; N.Y. 2,3,3; N.J. Mortgages, 22; Pa. Deeds, 100; Ind. 2931; 111. 30,28; Wis. 2242; Minn. 40,26; Neb. 1885,41,3: Md. 44,19; Del. 35,4; Va.* 114,5; W.Va.* 96,5 ; N.C. 1254; Ky. 24,9; Tenn.* 2837 ; Mo.* 3813 ; Ark. 5558; Tex. 4331 ; Cal.* 7952,6164,4235; Dak. Civ. C. 650 ; Ida. 1874-5, p. 558,9; Wy. 1882,1,13; S.C* 1776; Miss. 1212; Ga. 1956; Fla. 32,6; Ariz. 129; D.C., U.S. 1878.69. And all defeasible deeds in the nature of mortgages : N.Y. ; N.J. ; Pa. ; Wis. ; N.C. ; Tenn. ; Mo.* ; Ark. ; Tex. ; S.C. 769 ; Miss. All assignments of mortgages : N.J. Mortgages, 32 ; Pa.'' Deeds, etc. 6G ; Ind. 1093 ; Wis. ; Minn. ; Cal. 7934. All releases of mortgages : "^ Del. V. 11, C. 612; W.Va. 1882,49,5; Tenn. ; Cal. 42-35; Ida. ; Ariz. (2) All deeds for the absolute conveyance of real estate or any interest therein : N.H. ; R.I. ; Ct. 18,6,1,11 ; Pa. Deeds, etc. 10; Ind. 2926 ; Va.* ; N.C. ; Tenn.* ; Tex. 4332 ; S.C. ; Miss. ; all deeds of gift: Va.,* W.Va.,* Tenn.*; all bonds: Mo., Ark., Tex. ; all official bonds: Mo. ; Ark. 5559; Cal.; Ida.; Tex.; Ariz.; all covenants: Mo., Ark., Tex. ; all bargains and sales : N.H. ; R.I. ; Pa. ; Tex. 4332 ; Miss. ; all " transfers " of real property : Wy. ; Uta. 216; Fla.; conveyances for life : Mass. 120,4; Me. 73,8 ; Vt. ; R.I. ; Ind.; S.C; con- veyances for a term of years : Tex., Miss. ; conveyances in tail : Mass., Me., Vt. ; renunciations of dower: S.C; conveyances of a future estate : Ind. All other instruments concerning lauds and tenements, or gof)ds and chattels duly proved or acknowledged : Mo. ; Ark. ; Tex. 4336. Any instrument (or judgment, in California) affecting the title to, or possession of, real prop- erty : 111. ; Kan. 25,9 ; Cal. 6158 ; Col. 215 ; Dak. Civ. C 647. (3) All leases (a) for life : « Ct. 18,6,1,14; N.J. Cotiveyances, 19: S.C; (,8) for more than five years : Va. 114,4 ; W.Va. ; Ky. 24,8 ; (y) for more than three years : N.Y. 2,3, 36 and 38; O. 4112; Ind. 2926; Mich. 5689; Wis. 2242; Minn. 40,26; N.C; Tenn.; (i5) for more than two years : N.J. ; (f) for more than one year: Vt. 1931 ; R.I. ; Ct. 18,6, 1,14; Tex. ; Cal. 6214 ; Dak. Civ. C 671 ; Ida.; S.C. 1810 ; Miss. ; Ariz. ; (0 for more than seven years : N.H. ; Mass.; Me.; Md. 44,1 ; (?;) for more than twenty-one years: Pa. Deeds, etc. 78; Del. 83,17; V. 16, .520, 2. (6) All leases unaccompanied by possession or occupation by the lessee : Pa., Del./ And all assignments of such leases: Vt. 1934; N.J. Mortgages, 21 ; or mortgages of them : N.J. Mortgages, 22. Leases for terms less than, as re- spectively required above, are valid against subsequent purchasers, though unrecorded : Cal. ; and the same law is implied in all states. (4) All contracts and bonds (a) for the sale or purchase of laud : " Ct. 18,6,1,13 ; N.Y.* 2,3,39; ^ J. ^ Conveyances, 2'^; Ind.'' 2957 ; Mich." 5690; 5712; Wis.'' 2238 ; Neb.* 1,73,47 ; Md.*- 44,27; Va. ; W.Va.; N.C. ; Tenn.* ; Tex. ; Ore.'' 6,34 ; Nev. 252 ; Wy.'' 1882,1,22 ; Uta. 618 ; Miss.'' 1214 ; D.C'' 449. (/3) Or for the conveyance of a term of five years or more : Md.,'' Va., W.Va. So, all agreements by which an equitable interest is created : Ct. ; N.Y. 2,3,38. But in several states, no executory contract for the sale of land need be recorded : N.Y. ; Ind. 2956 ; Mich. ; Wis. ; Minn. ; Neb. ; Wy. See also $ 1.551. (5) * All marriage settlements or contracts : Va. ; W.Va. ; N.C. 1269 : Ky. 24,8 ; Tenn. ; Mo.; Ark.; Tex. 4335-6 ; 4332; Cal.; Ida.; S.C; Miss. 1211 ; La. 2265 ; D. 3086 ; Ariz. (6) All instruments describing or concerning the separate property of married women : * Tex., Cal., Ida., Miss., La. (7) Certificates of inarriace : '* Mo., Ark., Cal., Ida., Ariz. (8) All certificates of renunciation of dower : S.C. (9) All written statements furnished the recorder 222 FORMALITIES OF CONVEYANCING. for record showing sex and date of Lirth of any child or children, the name, business, and residence of i^ither'^ and maiden name cf the mother : Mo. N C r'46 • Ky * "•"24,13 ; Teun. ; Tex.*" 4336 ; Cal. ; Ore. ; " Nev. 255 ; Col. ; Ida. 1874- 5^ Com-e!/dnces, 27 ; Mon. G. L. 203; Wy." 1882,1,22 ; Uta. 621 ; Miss." 1179 ; Ariz. See Art 167. All letters of attorney anthorizing the satisfaction of mortgages : Pa." Deeds, etc. 66." r<»vvcrs of attorney authorizing other specified acts: Pa." Deeds, etc. 70; Attorneys in Fud, 6; 1883,3.5. Ke vocations of powers of attorney ; Teun. (See also H673.) (11) All deeds creating trusts (see also $ 1710) : S.C. (12) All wills duly proved must be recorded, indexed, or entered in the registry of deeds (n) for the county or counties where the land affected lies : Me." 7,16 ; N.Y. ; 111." 30,33 ; Minn. 47,a5 ; Neb." 1,73,22 ; 1885,41 ; Cal. ; Col. 230 ; I Q„ ^i^ig dav of , in the year , before me [here insert the name and quality of the officer] personally appeared , known to me [or proved to me on the oath of ] to be the person whose name is subscribed to the within instrument as the attorney in fact of , and acknowledged to me that he subscribed the name of thereto, as principal, and his own name as attorney in fact. r^ i aim r. i n- n A«a Cal. 6192 ; Dak. Civ. C. 666. (2) On this day of , 18 — , before me personally appeared A. B., to me known to be the person who executed the foregoing instrument in behalf of C. D., and acknowledged that he executed the same, as the free act and deed of said C. D. Minn. 1883,99,2 ; Mo. 1883, p. 20, § 1 ; Forms, 113. § 1673. Revocation. In three states a power of attorney to convey lands is deemed revoked when the instrument containing the revocation is recorded in the office where the power is, or would properly be, recorded : Md. 44,29; Tenn. 2030; Ark, GG3. So, iu many states, no power which has been duly recorded is deemed revoked by any act of the party creating it until such revocation is recorded as above : N.Y. 2,3,40 ; Ind. 1883,78,1 ; Mich. 5692 ; Wis. 2246 ; lo. 1969 ; Minn. 40,29 ; Kan. 22, 24; Neb. 1,73,19; 1885,41,14; Mo. 695; Cal. 6216; Ore. 6,35; Nev. 256 ; Dak. Civ. C. 673 ; Ida. 1874-5, Conveyances, 28 ; Mon. G. L. 204 ; Wy. 1882,1,23 ; Uta. 622 ; Miss. 1182 ; N.M. 2766 ; Ariz. 2272. In one, a power of attorney is deemed in force until the agent or attorney has had notice of his principal's death or revocation of the power : Pa. Attorneys in Face, 3. So, in one other, the death of principal does not operate as a revocation as to one who, without notice of such death, in good faith and without fraud deals with such agent believing, on good reason, that he is still such : Miss. 1183. In Maryland, all payments of money, transfers of property, or other dealings made or had to or with any person acting under a power of attorney or other agency duly executed or cre- ated by any person within the state, are binding on the representatives or assignees of such ])crson, although at the time of the payments, etc., he were dead or had assigned his interest, jirovided the person so paying, etc., to the attorney had not notice of such death or assignment : Md. 44,31. § 1674. Delegation. In Pennsylvania, any trustee or executor with power to convey real estate in the state may make a conveyance under such power by an attorney duly constituted : Pa. Attorneys in Fact, 4 ; Trustees, 69. But this does not authorize him to delegate the discre- tion vested in himself for the general management of the trust. § 1675. Form of Deed by Attorney. In Delaware, a deed by an attorney under a power may be acknowledged by him in any county : Del. 83,12. It may be acknowledged by him in the same manner as by a principal grantor : lo. 1962. He must acknowledge tliat he subscribed both the name of his principal and his own name as attorney in fact : Cal. 6192. In Maryland, any person executing a deed conveying real estate as agent or attorney for another must describe himself and sign in the deed as agent or attorney : Md. 44,30. But in two states, if in such deed the words of conveyance or signature are in the name of tlio attorney, it is as much the principal's deed as if they were in the name of the principal by tlie attorney, if it be manifest in tlie face of the deed that it should be construed to be that of the principal to give efi'ect to its intent : Va. 112,3; W.Va. 82,-3. So, in two others, no deed under a power duly executed, etc., is invalid because the attorney is named therein, as such attorney, as the grantor, instead of his principal : Pa. Attorneys in Fact,9>; 0. 4110; Miss. 1180; nor because the certificate of acknowledgment is so worded, but all such deeds are as valid, if within the power, as if executed by the principals in their own proper person : 0., Miss. USES AND TRUSTS IN LAND. 233 And in New Jersey, generally, whenever any attorney duly authorized has failed to convey the title of his principal by reason of any informality in the recitals or in the subject-matter or the execution of the deed, the deed is nevertheless good as though the informality did not exist: N.J. 1883,203. And in Tennessee, deeds may be signed either by the attorney for his principal, or by writ- ing the name of the principal by him as agent, or by simply writing his priijcipaFs name if the agency appear on the face of the deed : Tenn. 2819. § 1676. Amending Statutes. In all cases where deeds conveying real estate have been executed by any person purporting to act as attorney in fact, which deeds have been recorded twenty years in the proper county, it is presumed until the contrary be shown that such con- veyance was properly made by the attorney ; and the deed passes the legal title to the estate conveyed: Tenn. 2901. So powers of attorney if duly recorded for twenty years are deemed valid, whether properly i)roved and acknowledged or not : Tenu. 2902. See also N.J. 1882,68. CHAPTER VI.— USES AND TRUSTS. Art. 170. Uses and Trusts in Land. § 1700. Civil Law in Louisiana. Usufruct is the right of enjoying a thing, the propex-ty of which is vested in another, and to draw from the same all the profit, utility, and advantages which it may produce, provided it be without altering the substance of the thing. The obligation of not altering the substance of the thing takes place only in the case of per- fect usufruct. There are two kinds of usufruct : — Perfect usufruct, which is of things which the usufructuary can enjoy without changing their substance, though their substance may be diminished or deteriorated naturally by time or by the use to which they are applied, — as a house, a piece of laud, furniture, and other movable efiects. An imperfect or quasi usufruct, which is of things which would be useless to the usufruc- tuary if he did not consume or expend them, or change the substance of them, — as money, grain, liquors. Perfect usufruct does not transfer to the usufructuary the ownership of the thing subject to the usufruct ; the usufructuary is bound to use them as a prudent administrator would do, to preserve them as much as possible, in order to restore them to the owner as soon as the usufruct terminates. Imperfect usufruct, on the contrary, transfers to the usufructuary the ownership of the things subject to the usufruct, so that he may consume, sell, or dispose of them as he thinks proper, subject to certain charges hereinafter prescribed. Usufruct is an incorporeal thing, because it consists in a right. Usufruct is divisible ; for if this right is vested in several persons at a time, there is but one usufruct, which is divided among them, each having his portion. The reason is because the object of this right is the receiving the fruits of the thing, which are corporeal and divisible. Usufruct may, from its origin, be conferred on several persons in divided or undivided por- tions : La. 533-539. § 1701. General Principles. In several states, except as in this article speci- fied (see § 1703) all uses and trusts are expressly abolished : N.Y. 2,1,2,45 ; Mich. 5563 ; Wis. 2071 ; Minn. 43,1 ; Cal. 5847 ; Dak. Civ. C. 273 ; Ala. 2185-2186. See also Statute of Frauds (Title VI.) for other cases of void trusts. Excej^t (1) trusts arising by implication of law : N.Y. 2,1,2,50; Mich. 5568; Wis. 2076; Minn. 43,6 ; Cal. 5852 ; Dak. Civ. C 279. In Georgia, the technical rule that a use cannot be limited on a use, or a trust on a trust, is abolished ; and the last trust will always be the one executed : Ga. 2315. 234 USES AND TRUSTS. § 1702. The Statute of Uses (27 H. VIII. c. 10) is, in a few states, re-enacted. Thus (A), in express terms, that if any person is seized of land to the use of another, the person entitled to the use is seized of the land and of the like estate therein as he has in the use ; and the estate of the person so seized to the use shall be deemed to be in him that has the use, after such quality, form, manner, and condition as he had before in the use : 111. 30,3 ; Mo. 3938; S.C. 1958-1960. (B) la other states, all estates and interests in laud are deemed a legal right, except as in §§ 1701,1703 specified; and every disposition of land must be made directly to the person in whom the right to possession and profits is intended to be vested : N.Y. 2,1,2,49 and 45; Mich. 5567,5563; Wis. 2071,2075 ; Minn. 43,1 and 5 ; Dak. Civ. C. 277. (C) And in New Jersey, every person to whom the use of land has been or may be con- veyed shall be deemed to be in as full possession of such land for all purposes as if he were pos- sessed thereof by livery of seisin and possession : N.J. Conveyances, 66. (D) So, iu Delaware, the legal estate accompanies the use and passes with it : Del. 83,1. (E) And the right to possess the land and receive the rents, in law or equity, makes legal ownership of the same quality as such beneficial interest: N.Y. 2,1,2,47 ; Mich. 5565; Wis. 2073; Minn. 43,3; Dak. Civ. C. 275 ; Ala. (F) Every estate which is now held as a use, executed under the laws of the State as they formerly existed, is confirmed as a legal estate : N.Y. 2,1,2,46 ; Mich. 5564 ; Wis. 2072 ; Minn. 43,2 ; Dak. Civ. C. 274. (G) And a disposition of land to one or more for the mere benefit of another, or iu trust for such other without limitation, vests no estate, legal or equitable, in the trus- tee : N.Y. 2,1,2,49; Ind. 2981 ; Mich. 5567; Wis. 2075 ; Minn. 43,5 ; Kan. 114,13; Dak. Civ. C. 277 ; Ala. 2185. E and G do not apply in the case of the trustees in an active existing trust : N.Y. 2,1,2,48 ; Mich. 5566; Wis. 2074; Minn. 43,4; Dak. Civ. C. 276,278. (H) So, in an executed trust for the benefit of a person capable of taking and managing the property in his own right, the legal title is merged immediately into the equitable interest, and tlie perfect title vests in the beneficiary according to the terms and limitations of the trust : Ga. 2314. 1703. Express Trusts. In a few states, it is declared that express trusts may be created (by deed or devise) (1) to sell lands («) for the benefit of creditors : N.Y. 2,1,2,-55; 1841,261; Mich. 5573 ; Wis. 2081, Amt. ; Minn. 43,11 ; (p') to sell them and apply or dispose of the proceeds in accordance with the creating instrument : Cal. 5857 ; Dak. Civ. C. 282. (2) To sell, mortgage, or lease lands for the benefit of legatees, or to satisfy any char'^e thereon : N.Y., Mich., Wis., Minn., Cal., Dak. (3) To receive the rents and profits and apply them to the use of a person for his life, or a shorter time: N.Y. ; Mich.; Wis.; iMinn. ; N.C. 1335; Cab; Dak. Cf. § 144.3. (4) To accumulate rents and profits for the time by law allowed : N.Y. ib. ; 1846,74 ; 1855,432; Mich.; Wis.; Minn; Cab; Dak. Cf § 1443. (5) For the benefit (a) of females : Ga. 2306 ; (/3) of minors : Ga. ; (y) of insane persons : Ga. ; (6) of married women : Pa. Trustees, 57 ; W^is. (6) Any person competent by law to execute a will or deed may by such instrument duly executed create a trust for any male person of age who is, on account of mental weakness, in- temperate, wasteful, or profligate habits, unfit to be intrusted with the right and management of property; if at any time these grounds of trust cease, the beneficiary is legally and fully possessed of the trust estate (and any person interested may file a petition to terminate the trust) : Ga. 2.306. (7) For the benefit of any person or persons, when such trust is fully expressed and clearly defined in the instrument, subject to the ordinary limitations of the laws against perpetuities (Art. 144) : Mich., Wis. USES AND TRUSTS IN LAND. 235 (8) To receive and take charge of personal property and invest tlie same for the benefit of an express trust : Minn. (9) And also, real or personal property may be granted in trust (a) to any literary incorporation or college : N.Y. 1840,318,1 ; seminaries, colleges, universities : Ky. 13,1. Or O) to the corporation of any city or town : N.Y. 1840,318,2. Or (y) to com- mon schools : N.Y. 1840,318,3. Or (5) to historical societies: N.Y. 1879,203,1. Or (e) to any " schools of learning: " Ct. 18,6,2; Ky. Or (f) " for the maintenance of the ministry of the gospel : " Ct. ; for the use of churches : Ky. Or (;;) '' for the relief of the poor: " Ct., Ky. ; of sick and maimed soldiers and mariners : Ky. (6) For perpetually keeping in repair and preserving any tomb, or gravestone, or cemetery, to an amount not exceeding $2,000 : Wis. (t) For the benefit of navigation : Ky. ; (/c) of bridges : Ky. ; (X) ports : Ky. (;i) causeways : Ky. ; public highways : Ky. ; (i^) houses of correction : Ky. : (o) hospitals : Ky. ; asylums : Ky: ; of idiots and lunatics : Ky. ; deaf and dumb : Ky. ; blind : Ky. ; (tt) in aid of young tradesmen : Ky. ; (p) orphans ; Ky. ; (o-) redemption of prisoners and captives : Ky. ; setting out of soldiers : Ky. Or (10) " for any other public or charitable use : " Ct. (11) In Vermont, the court may so appoint trustees, when the use of real or personal property descends to a person for life or a terna of years, and it has tlie same power in relation to such trust as in the case of guardians of minor children : Vt. 2293. Generally, express trusts not above authorized vest no estate in the trustees, but may be valid as a power (§ 1727), subject to the provisions of Chap. V. : N.Y. 2,1,2,48 ; Mich. 5576; Wis. 2084; Minn. 43,14 ; Dak. Civ. C. 285. And nothing in this article prevents the creation of a power in trust for any of the purposes above specified : Dak. Civ. C. 286. § 1704. Receivers. In most states, receivers appointed by a court exercising chancery jurisdiction may take and hold real estate upon such trusts and for such purposes as the court may direct. See Part IV. § 1705. For Persons Disappearing, see Art. 251, and in Probate Code, Part IV. § 1706. Implied Trusts : Consideration. No use or trust results to the person paying the consideration, but the title vests in the person named as alienee : N.Y. 2,1,2,51; Ind. 2974; Mich. 5569; Wis. 2077 ; Minn. 43,7; Kan. 114,6; Ky. 63, 1,19. Except, that such conveyance is pri77ia fade fraudulent as against the creditors of the person paying the consideration : N.Y. 2,1,2,52 ; Ind. 2975 ; Mich. 5570 ; Wis. 2078 ; Minn. 43,8 ; Kan. 114,7 ; Ky. 63,1,20. And, if not disi^roved, a trust results in favor of creditors to the extent of their just demands : N.Y., Ind., Mich., Wis., Minn., Kan. As whei'e an alienee has taken an absolute conveyance in his name without consent of the person paying the consideration : N.Y. 2,1,2,53 ; Ind. 2976; Mich. 5571 ; Wis. 2079 ; Minn. 43,9 ; Kan. 1 14,8 ; Ky. 63,1,19. Or where an alienee, in violation of some trust, purchased the land with moneys not his own : N.Y., Ind., Mich., Wis., Minn., Kan., Ky. Or where, by agreement and without fraudulent intent, the person to whom the conveyance was made was to hold the land or some interest therein in trust for the person paying the con- sideration or some part thereof: Ind., Kan. But in one state, a trust is implied whenever the legal title is in one, but the beneficial in- terest, either from the payment of the purchase-money or other circumstances, wholly or partially in another : Ga. 2316. So wlien a transfer of real property is made to one person and the consideration therefor is paid by or for another, a trust is presumed to result in favor of such other person: Cal. 5853; Dak. Civ. C. 280. § 1707. Resulting Trusts. When an express trust is created, every estate and interest not embraced in the trust or otherwise disposed of reverts to the creator or his heirs as a legal estate : N.Y. 2,1, 2,62; Mich. 5580; Wis. 2088; Minn. 43,18; Cal. 5866; Dak. Civ. C. 291 : Ga.2316. 236 l^'SES AND TRUSTS. § 1708. Miscellaneous Cases. A trust is also implied (1) where; from any fraud, one person obtains the title to property which rightly belongs to another: Ga. 2316. (2) Where, from the nature of the transaction, it is manifest that it was the intention of the parties that the person taking the legal title should have no beneficial interest : Ga. It is provided that in all cases where a trust is sought to be implied, the court may hear parol evidence of the nature of the transaction, or the circumstances or conduct of the parties, either to imply or rebut a trust : Ga. 2317. § 1709. Cy-Pres Doctrine. In Pennsylvania, no disposition of property made for any rolisious, charitable, literary, or scientific use shall fail for want of a trustee, or by reason of the'objects being indefinite, uncertain, or ceasing or depending upon the discretion of a lost trustee, or being given in perpetuity or in excess of the annual value limited by law ; but it is the duty of the court to supply a trustee, and by its decrees to carry into effect the intent of the donor or testator, so far as the same can be ascertained and carried into effect consistently with law or equity : Pa. Chanties, 18. And so also, when any estate, real or personal, is vested in trustees for the benefit of a class of persons which has become extinct, if there are no heirs to claim the fund, the trustees may petition the court for authority to apply it to the benefit of some other class of persons similarly situated : Pa. Ann. Dig. Charities, 2. See also in Part III., Charities, and Part IV., Equity. Art. 171. Creation of Trusts. § 1710. Form, (a) Except such trusts as may arise by implication or oper- ation of law, no trust concerning lauds can, in nearly all states, be created or declared except by will or deed executed like other deeds (Art. 156) by the party making or creating the trust or his attorney : N.H. 135,13 ; Mass. 141,1 ; Me. 73,11 ; Vt. 1933 ; N.Y. 2,7,1,6 : N.J. Frauds, dc. 3; Pa. Frauds, etc. 3; Ind. 2969, 4907 ; in. 59,9 ; Mich. 6180 ; Wis. 2302 ; lo. 1934 ; Minn. 41,10 ; Kan. 22,8 ; 114,1 ; Neb. 1,32,3-4 ; Mo. 2511-2 ; Ark. 3382-3 ; Cal.« 5852 ; Ore. Civ. C. 771-2 ; Nev. 283-4 ; Col. 1515-6 ; Dak. Civ. C. 279 ; Ida. Civ. C. 935 ; Uta. C. Civ. P. 1206-7 ; S.C. 1961-2 ; Ga. 2310 ; Ala. 2199 ; Miss. 1296 ; Fla. 32,2 ; Ariz. 2119 ; Mon. G. L. 160-1. See Statute of Frauds ; compare §§ 1471,1551. (b) So also, all grants or assignments of existing trusts must be in writing (whether they apply to real or personal property, in New York and New Jersey), and subscribed by the party making the same or his agent lawfully authorized, or they .shall be void : N.Y. 2,7,3,2 ; N.J. Frauds, 4 ; Pa^; Ind. 4906 ; Mich. 6204 ; Wis. 2321 ; Minn. 41,9 ; Neb. ; Mo. ; Ark. ; Ore. 6,52 ; Nev. 298 ; Col. 1527 ; Ida. ; S.C. 1963; Miss. 1297; Fla. 32,3; Ariz. KoTE. — " Such party declaring the trust may of course be the trustee liimself, and it is so specified in California. § 1711. Record. Generally, the provisions for recording deeds apply to instru- ments creating a trust : Mass. 141,2-3; Me. 73,12; Ct. 18,6,1,13 ; Ind. 2970-1 ; S.C. 19G9 ; Miss. 129G-7. The same would result, in other states, from the provisions of § 1710, A. And cf. § 1G24. So, in many, " no implied or resulting trust shall defeat the title of a purchaser or incumbrancer for value without notice :" Mass. 141,3; Me. 73,12; N.Y. 2,1,2,54; Ind. 2970; Mich. 5.572; Wis. 2080 ; Minn. 43,10 ; Kan. 114,2; Cal. 5856 ; Dak. Civ. C. 281 ; S.C. 1968 ; Ala. 2200. And so, in several, no express trust unrecorded : Mass., Me., Ind., Kan. But record of the instrument from which the trust is created or implied is notice : Ind. 2971 ; Kan. 114,3; Ala. 2201. RIGHTS OF PARTIES 237 So, in South Caroliua, but a trust instrument must be recorded under the provisions for the record of mortgages (§§ 1615,1859). Any one of the beneficiaries has a process to compel tlie trustee to record the creating in- strument : Pa. Trustees, 71. In New Jersey, deeds of trust of personal property are to be recorded by the county clerks : N.J. Conveyances, App. 1. In Georgia, trusts for male persons of full age, on grounds mentioned in $ 1703 (6), must be recorded where the beneficiary resides within three months of execution, or they are void : Ga. 2306. § 1712. Words Necessary. It is especially enacted that no formal words are necessary to create a trust estate : Ga. 2305. And that whenever a manifest intention is exhibited that another person shall have the benefit of the property, the grantee shall be declared a trustee : Ga. No words of separate use are necessary to create a trust estate for the wife ; the appointment of a trustee, or any words sufiicient to create a trust, operate to create a separate estate : Ga. 2307. It is provided that precatory or recommendatory words will create a trust if they are suf- ficiently imperative to show that it is not left discretionary with the party to act or not, and if the subject-matter of the trust is defined with sufficient certainty, and if the object is also cer- tainly defined, and the mode in which the trust is to be executed : Ga. 2318. Cf. $ 1732. § 1713. Louisiana Civil Law. Usufruct may be established by all sorts of titles, — by a deed of sale, by a marriage contract, by donation, compromise, exchange, last wUl, and even by operation of law. Thus the usufruct to which a father is entitled on the estate of his children during the mar- riage is a legal usufruct. Usufruct may be established on every description of estates, movable or immovable, corpo- real and incorporeal. Usufruct may be established simply, or to take place at a certain day, or under condition ; in a word, under all such modifications as the person who gives such a right may be pleased to annex to it. It may be granted to all such as may be possessed of an estate, even to communities or corporations : La. 540-543. Art. 172. Rights of Parties. § 1720. Rights of Beneficiaries, (a) Every valid express trust vests the ■whole estate in the trustees, in law and equity, subject only to the execution of the trust: KY. 2,1,2,60; Mich. 5578; Wis. 2086; Minn. 43,16 ; Cal. 5863 ; Dak. Civ. C. 288; Ala. 2186. (b) And the beneficiaries take no estate or interest in the land, but may en- force the performance of the trust : N.Y., Mich., Wis., Minn., Cal, Dak., Ala. But this shall not prevent any person creating a trust from declaring to whom the land to which the trust relates shall belong, in the event of the failure or determination of the trust, nor shall it prevent him from granting or devising such lands, subject to the execution of the trust ; and every such grantee shall have a legal estate in the land as against all persons except the trustees and those lawfully claiming under them : KY. 2,1,2,61 ; Mich. 5579 ; Wis. 2087 ; Minn. 43,17 ; Cal. 5864-5 ; Dak. Civ. C. 289-90. § 1721. Rights of Creditors. Where there is no valid direction for accumulation, in a trust to receive the rents and profits of lands, the surplus beyond what is neces- sary for the education and support of the beneficiary is liable (in equity usually) to the claims of his creditors: N.Y. 2,1,2,57; Mich. 5575; Wis. 2083; Minn. 43,13; Cal. 5859 ; Dak. Civ. C. 284. Any person may convey real estate to his children and their issue, during their lives, whether begotten or to be begotten, and in such conveyance may inhibit the alienation of such estate 238 USES AND TRUSTS. during their lives ; and the estate vests accordingly, and is not liable for the grantor's debts incurred after such conveyance : Ariz. 2287. All estates either real or personal, possessed in trust are liable for the debts, and subject to the charges, of the beneficiary, as if he held the legal title : Va. 112,16; W.Va. 82,16; Miss. 1204. But property conveyed in trust under $ 1703 (3) for the maintenance of a relation of the settlor is nt>t liable for the debts of such relation, provided the clear annual income of the property at the time of the creation of the trust does not exceed $500 : N.C. 1335. A beneficiary may contract debts for the protection or preservation of the trust estate, or for his own support and maintenance, when he has possession of the estate, or when the trustee refuses to provide for such expenses, which debts will be binding upon the trust estate : Ga. 233G. A beneficiary may, if of full age and sound mind, voluntarily sell and convey any portion of her interest in such estate to any person, except her husband or her trustee ; and, upon appli- cation to the court, such sale may be confirmed by the court in its discretion, and the proceeds reinvested under its order: Ga. 2337. § 1722. Proceedings applicable to Trust Estates generally. They are liable to any person for any labor or service rendered under a contract with the acting executor, administra- tor, or otlier trustee thereof, when such executor, etc., has died, become insolvent, or been re- moved, and the amount thereof is a charge on the estate (but this is not to apply to an executor de son tort) : Ala. 3747. § 1723. Rights of Third Parties. In many states, no person who actually in good faith pays money to a trustee, which the trustee as such is authorized to re- ceive, is responsible for the application of the money, nor shall his right and title so derived be prejudiced by reason of a misapplication thereof: N.Y." 2,1,2,66 ; Ind. 2977 ; Mich." 5584 ; Wis. 2092 ; Minn." 43,22 ; Kan. 114,9 ; Mo. 3937 ; Cal. 7244 ; Dak." Civ. C. 1311 ; Ga. 2329; Ala. 2197. So, in Kentucky, where lands are devised to be sold on special or general trusts, or are con- veyed or devised to trustees or executors in trust to be sold generally or for any special purpose, the purchaser shall not be bound to look to the application of the purchase-money, unless so expressly required by the conveyance or devise : Ky. 113,23. So, in two others, the receipt by an executor, or any trustee, whether under a will or other instrument, for any money payable to him in the execution of his trust, shall discharge the person paying it from any liability to see to the application of said money, unless otherwise expressly provided in the instrument which creates: N.J. 1884,9; Miss. 1985. But in two, the purchaser from a trustee, with actual or constructive notice of the trust, liolds as trustee for the beneficiaries: Ga., Ala. So, in California, other jjcrsons than as in A specified must at their peril see to the proper application of money or otlier property delivered by them. Note. — " Applies also to powers in trust. See § 1651. § 1724. Assignment. In several states, the beneficiary of a trust for the receipt of rents or profits in lands cannot assign or dispose of his interest ; otherwise if the trust be for the payment of a sum in gross : N.Y. 2,1,2,63 ; Ind. 2972 ; Mich. 5581 ; Wis. 2089 ; Minn. 43,19 ; Kan. 114,4. But in two states, the beneficiary of a trust fir tlie receipt of rents and profits or for an annuity arising therefrom may be restrained from disposing of his interest during his life or for a certain teiTn of years [only] by express provision in the creating instrument : Cal. 5867 ; Dak. Civ. C. 292. § 1725, Rights of Purchasers. In a few states, when an [express] trust is ex- pressed in the creating instnmient, every sale, conveyance, or other act of the trustees in contravention of the trust, is absolutely void : N.Y. 2,1,2,65 ; Ind. 2973 ; Mich. 5583 ; Wis. 2091 ; Minn. 43,21 ; Kan. 114,5 ; Cal. 5870 ; Dak. Civ. C. 294. So of any trust: Ind., Kan. And in Kentucky, no sale of real estate by a trustee by virtue of a deed of trust or pledge to secure debts is valid, nor does the conveyance by such trustee EIGHTS OF PARTIES. 239 pass the title, unless made under a judgment of court, or the maker of such deed or pledge join iu a writing evidencing the sale: Ky. 63,1,22. But where the trust is not contained in the instrument, though in fact created, the conveyance of the trustees is deemed absolute as in favor of (1) purchasers from them for value, without notice • N.Y. 2,1,2,64-65 ; Mich. 5582 ; Wis. 2090 ; Minn. 43,20 ; Cal. 5869 ; Dak. Civ. C. 293 ; or (2) as against the subsequent creditors of the trustee : ^.Y., Mich., Wis., Jklinn., Cal. § 1726. Testamentary Trusts. The executors of any will to whom is given thereby a naked authority only to sell any real estate, shall hold the same, and have the same powers and authorities over it as if it had been devised to them to be sold : Pa." Decedents, 71. In North Carolina, a statute provides that property may be given or devised in trust to pay the profits annually or oftener for the support of a relation of the settlor, for the life of such rela- tion with remainder ; and the property so conveyed is not liable in any way for the debts of such relation, whether contracted before or after the creation of' the trust: N.C. 1335. But this provision applies only to trusts of which the clear income at the time of creation does not exceed $500 : N.C. Estates of any kind held in trust for another are subject to the like debts and charges of the person for whose benefit they are held as they would have been subject to if the person had owned the like interest in the thing holden as in the trust (whether trust be fully executed or not ; and it may be sold under exe- cution so as to pass whatever interest the cestui may have, in Mississippi) : Miss. 1204 ; Ky. 63,1,21. Note. — « The testator may, liowever, direct otherwise. § 1727. Trusts valid as a Power. When trusts are valid as a power the lands shall remain in or descend to the persons otherwise entitled, subject to the execution of the trust as a power: N.Y. 2,1,2,56 and 59; Mich. 5577; Wis. 2085; Minn, 43,15; Dak. Civ. C. 287. A devise of land to executors or other trustees to be sold or mortgaged, where such trustees are not also empowered to receive the rents and profits, shall vest no estate in the trustees ; but the trust shall be valid as a power, and the lands shall descend to the heirs or pass to the devisees of the testator, subject to the execution of the power : N.Y. 2,1,2,56; Mich. 5574; Wis. 2082; Minn. 4.3,12; Dak. Civ. C. 283. § 1728. Determination. When the purposes for which an express tnist has been created have ceased, the estate of the trustees ceases : N.Y." 2,1,2,67; Mich.° 5585; 5619 ; Wis." 2093 ; Minn." 43,23 ; Cal. 5871 ; Dak." Civ. C. 295. In New York, if an estate is conveyed to trustees for the benefit of creditors without any other limitation, it is deemed discharged at the end of twenty-five years, and the remainder of the estate so conveyed reverts to the grantor. Note. — « See § 1723, note ". § 1729. Louisiana Civil Law. All kinds of fruits, natural, cultivated, or civil, produced during the existence of the usufruct by the things subject to it, belong to the usufructuary. Natural fruits are such as are the spontaneous product of the earth ; the product and increase of cattle are likewise natural fruits. The fruits which result from industry bestowed on a piece of ground are those which are obtained by cultivation. Civil fruits are rents of real property, the interest of money, and annuities. All other kinds of revenue or income derived from property by the operation of the law or private agreement, are civil fruits. The natural fruits, or such as are the product of industry, hanging by branches or by roots at the time when the usufruct is open, belong to the usufructuary. Fruits in the same state, at the moment when the usufruct is at an end, belong to the owner, without being obliged to compensate the other for either work or seeds. 240 USES AND TRUSTS. Rents and income of property, interest of money, and annuities, and other civil fruits, are supposed to be obtained day by day, and they belong to the usufructuary, in proportion to the duration of his usufruct, and are due to liim, though they may not be collected at the expira- tion of his usufruct. The usufruct of a house carries with it the enjoyment of the house, of the profits which it may bring, and indeed of such furniture as is pennanently fixed therein, even should the title by which the usufruct is established make no mention of the same. If the usufruct includes things which cannot be used without being expended or consumed, or without their substance being changed, the usufructuary has the right to dispose of them at his pleasure, but under the obligation of returning the same quantity, quality, and value to the owner, or their estimated price, at the expiration of the usufi-uct. If the usufruct comprehends things which, though not consumed at once, are gradually im- paired by wear and decay, — such as furniture, — the usufructuary has, in like manner, a right to make use of them for the pui*poses for which they are intended, and at the expiration of the usufruct he is obliged only to restore them in the state in which they may be, provided they have not been impaired through his fault or neglect. And even should any of these things be entirely worn out by use at the expiration of the usufruct, the usufructuary is not bound to make good the same. The usufructuary has a right to draw all the profits which are usually produced by the thing subject to the usufruct. Accordingly, he may cut trees on land of which he has the usufruct, take from it earth, stones, sand, and other materials, but for his use only, and for the amelioration and cultivation of the land, provided he act in that respect as a prudent administrator, and without abusing this right. The usufructuary has a right to the enjoyment and proceeds of mines and quarries in the land subject to the usufruct, if they were actually worked before the commencement of the usufruct ; but he has no right to mines and quarries not opened. The usufructuary enjoys the increase brought by alluvion to the land of which he has the usufruct, but has no right to islands formed in a stream not navigable opposite the land ; they belong to the riparian proprietors. In like manner he has no right, not even the right of enjoyment, to the treasure which may be discovered in the land of which he has the usufruct, unless he himself has discovered it, in which case he shall only enjoy the right granted by law to such persons as find a treasure in a piece of land the property of another person. The usufructuary enjoys the rights of servitudes, ways, or others due to the inheritance of which he has the usufruct ; and if this inheritance is inclosed within the other lands of him who has established such usufruct, a way must be gratuitously furnished to the usufructuary by the owner of the land or by his heirs. The usufructuary may enjoy by himself or lease to another, or even sell or give away his right ; but all the contracts or agreements which he makes in this respect, whatever duration he may have intended to give them, cease of right at the expiration of the usufruct. The usufructuary can maintain all actions against the owner and third persons which may be necessary to insure him the possession, enjoyment, and preservation of his right : La. 544- 55G. Of the Obligations of the Usufructuary. The usufructuary takes things in the state in which they are; but he cannot obtain possession of the things subject to the usufruct without ha\'ing caused to be made in presence of the owner, or after the ownier has been duly sum- moned, if he be within the state, an inventory with the estimated value of the estate, both movable and immovable, subject to the usufruct, by a notary public duly authorized by the judge to that effect, and in the presence of two witnesses. If the owner be absent from the state, and is not represented by any person therein, the judge shall apjxnnt a counsel for him to assist at the inventory. The usufructuary must give security that he will use, as a prudent administrator would do, the movables and immovables subject to the usufruct, and that he will faithfully fulfil all the obligations imposed on him by law and by the title under which his usufruct is established. The amount of this security shall be the estimated value of the movables subject to the usufruct, according to the inventory, and such further sum as shall be fixed by the judge ac- cording to the nature of the immovable property subject to the usufruct, to answer for the damages which the usufructuary or those for whom he is responsible may commit thereon. RIGHTS OF PARTIES. 241 This security may be dispensed with, in favor of the usufructuary, by the act by which the usufruct is established. Neither the father nor mother having the legal usufruct of the estate of their children, nor the seller nor the donor under the reservation of the usufruct, is required to give this security. If the usufructuary sell, give away, or lease his right, he, as well as his security, is respon- sible for the abuse which the person to whom he has assigned his rights makes of the things subject to the usufruct, and the damage he may commit on them. The usufructuary may, for the security required of him by law, give a special mortgage on immovable property of sufficient value and unincumbered lying within the State. If the usufructuary does not give security or a special mortgage, as is prescribed in tlie pre- ceding article, the immovables subject to the usufruct shall be leased at public auction. Sums of money, the usufruct of which has been given, shall be put out at interest on good security, with the consent of tlte owner, and if he refuse, by the authority of the judge. Movables subject to the same usufruct shall be sold at public auction, and the proceeds of the sale shall be put out at interest in the manner above prescribed. The interest of such sums, the amount of the rent of the immovable and the products of the sequestered property shall, in such case, belong to the usufructuary. In case the usufructuary does not give security, the owner has a right to insist that such furniture as grows worse by use be sold, that the proceeds may be placed at interest, as well as that of merchandise ; and in that case the usufructuary enjoys the interest during the usufruct. Nevertheless, the usufructuary may claim, and the judge may order, according to circumstances, that a part of the furniture necessary for his use be left to him, under the simple obligation of returning the same at the expiration of the usufruct. The usufructuary is bound to suffer the servitude which existed on the land of which he has the usufruct at the time his right commenced. A delay to give security does not deprive the usufructuary of the profits to which he may have a right ; they are due to him from the moment that the usufruct accrued. It is the duty of the usufructuary to keep the things of which he has the usufruct, and to take the same care of them as a prudent owner does of what belongs to him. He is accordingly answerable for such losses as proceed from his fraud, default, or neglect. The usufructuary has a right to make useful and necessary improvements and repairs on the estate subject to the usufruct, and even to make such as are not necessary, but only to suit his own convenience, provided he do not injure the estate, or change its condition. But as to build- ings existing on the laud at the commencement of the usufruct, he must preserve them sucli as they have been transmitted to him, nor can he alter their form, distribution, or destination, even to improve it, without the consent of the owner. He has, however, the right to make openings for windows and doors in the house in which he lives and of which he has the usufruct. The usufructuary cannot finish buildings commenced by the owner, nor erect new buildings upon the land of which he has the usufruct, unless these buildings are necessary for working tlie land or for getting in the crops ; he, however, may rebuild edifices and other works which have been destroyed or thrown down by time or accident. The usufructuary cannot demolish or destroy what he has once built or constructed, nor take away the materials ; he must abandon the whole to the owner at the end of his usufruct, without being able to claim any indemnity therefor. It is understood that all these restrictions on the rights of the usufructuary, and others men- tiulated. It is the same with all annual legacies as pensions of alimony and the like. If the title of the usufruct lias limit(>d the right to it to commence or determine at a certain time, or in the event of a certain condition, the right does not commence or determine till the cony so extinguished, that if afterwards he loses the ownership the entire ownership is lost to liim, and the usufruct does not revive unless the title by which he acquired the ownership be annulled for some previ- ously existing defect or some vice inherent in the act ; for, in that case, the usufructuary never having been the owner, no consolidation has taken place, and the usufruct continues. The usufruct may cease by the abuse which the usufructuary makes in his enjoyment, either in committing waste on the estate or in suffering it to go to decay for want of repairs, or in abusing in any other manner the things subject to the usufruct. In such cases the judge may, according to the circumstances, decree the absolute extinction of the usufruct, or order that the owner shall re-enter into the enjoyment of the property sub- ject to the usufruct, on condition that he shall pay annually to the usufructuary or his repre- sentatives until the usufruct expires a sum which shall be fixed on by the judge in proportion to the value of the property subject to the usufruct. The usufructuary may prevent the re-entry of the owner, in case of damage committed by the former on the property subject to the usufruct, by oflering to make the necessary repairs, and giving a sufficient security that he will make them within a certain fixed time. The creditors of the usufructuary may intervene in all suits which arise between him and the owner on this subject, for the preservation of their rights, and may prevent the expulsion of the usufructuary by ofi'eriug to repair the damages committed, and give security for the future. 246 USES AND TRUSTS. The creditors of the usufructuary can cause to be annulled any renunciation which he may have made of his right to their prejudice, whether it be accoujpauied with fraud or not, and they are permitted to exercise all the rights of their debtor in this respect. In all cases the renunciation of the usufructuary cannot be inferred from circumstances ; it must be express. When the usufruct has expired, it returns to and becomes again incorporated with the owner- ship ; and from that time the person who had only the naked ownership begins to enter into a full and entire ownership of the thing. Nevertheless, the usufructuary or his heirs have the right to retain possession of the thing subject to the usufruct, until they have been fully repaid for all expenses and advances, for which they have, by law, recourse against the owner or his heirs : La. 606-625. Of Use and Habitation. Use is the right given to any one to make a gratuitous use of a thing belonging to another, or to exact such a portion of the fruits it produces as is necessary for his personal wants and those of his family. The right of habitation is the right of dwelling gratuitously in a house the property of another person. The rights of use and habitation are established and extinguished in the same manner as the usufruct. The person having the use, if he be in possession of the thing affected with his right, as is said hereafter, and he who enjoys the right of habitation, are bound to furnish security and to make an inventory, in the same manner as the usufructuary, and under the rules, exceptions, and restrictions established on this subject in the chapter: Of usufruct. But the person having the use is not bound to give security nor to make an inventory, if the thing remains in the possession of the owner, and his right is confined to exacting out of the fruits produced by the thing what is necessary for his personal wants and those of his family ; for in relati(m to these fruits he is not bound to make any restitution. The rights to use and habitation are regulated by the title which has established them, and receive accordingly a more or less extensive sense ; it being well understood that these conven- tions do not exceed the limits of the laws on use and habitation ; for if they do, they create other rights. Thus a right to receive the fruits of a property and to sell and dispose of them freely would be a I'ight of usufruct, and all the laws concerning usufruct would be applicable to it. If the title be silent with respect to the extent of the right, the rights to use and haljitation shall be determined by the following rules : — That which distinguisiies the usufruct of a property from the use of it is this, that the enjoy- ment of the usufructuary is not confined to what is necessary for his consumption, but he takes all the fruits, and can dispose of tliem as he pleases. Tlie person, on tlie other hand, who has only the use of an estate has a right only to such fruits as may be necessary for his daily wants and those of his family. But he may claim so much of those fruits as may be necessary to supply the wants of the woman he has mamed, and of his children born since the use has been granted to him. He who has the use of the fruits of an estate cannot go upon the estate to exercise his rights, still less is he permitted to live there, unless behave thereon a right of habitation ; he has only an action against the owner to obtain from him such of the fruits as may be necessary for his daily wants and those of his family. Ho who has the use may, therefore, cause to be fixed by the judge, from time to time, the proportion of fruits which he has a right to exact from the owner of the property; and this must be determined according to the cject only mov- ables, corporeal, or incorporeal. 2. That, in pledge, the movables and effects subjected to it, are put into the possession of the creditor, or of a third person agreed upon by the parties, while the mortgage only subjects to the rights of the creditor the property on which it is imposed, without it being necessary that he should have actual possession. The mortgage is a real right on the property bound for the discharge of the obligation. It is in its nature indivisible, and prevails over all the immovables subjected to it, and over each and every portion. It follows them into whatever hands they pass. The mortgage only takes place in such instances as are authorized by law. The mortgage is accessory to a principal obligation which it is designed to strengthen, and of which it is to secure the execution. Consequently, it is essentially necessary to the existence of a mortgage that there shall be a principal debt to serve as a foundation for it. Hence it happens, that in all cases where the principal debt is extinguished, the mortgage disappears with it. Hence also it happens that, when the principal obligation is void, the mortgage is like- wise so ; this, however, is to be understood with certain restrictions wliich are established hereafter. Mortgage is conventional, legal, or judicial. Conventional mortgage is that which depends on covenants. Legal mortgage is that which is created by operation of law. Judicial mortgage is that which results from judgments. Mortgage, with respect to the manner in which it binds property, is divided into general mortgage and special mortgage. General mortgage is that which binds all the property, present and future, of the debtor. Special mortgage is that which binds only certain specified property. The following objects alone are susceptible of mortgage : — 1. Immovables subject to alienation, and their accessories considered likewise as immov- ables. 2. The usufruct of the same description of property, with its accessories, during the time of its duration. 3. Ships and other vessels : La. 3278-.3289. Of Conventional Mortgages. The conventional mortgage is a contract by which a per- son binds the whole of his property, or a portion of it only, in fiivor of another, to secure the execution of some engagement, but without divesting himself of the possession. A mortgage may be stipulated for the fulfilment of any obligation whatever, even for the performance of an act. A mortgage may be given for an obligation which has not yet risen into existence ; as when a man grants a mortgage by way of security for indorsement, which another promises to make for him. But the right of mortgage, in this case, shall only be realized in so far as the promise shall be carried into effect by the person making it. The fulfilment of the promise, however, shall impart to the mortgage a retrospective effect to the time of the contract. A mortgage may be given for a part only of the principal obligation. It is not necessary that tlie mortgage should be given by the person contracting the princi- pal obligation ; it may be given for the contract of a third person. When a person has given a mortgage on his property for the obligation of a tliird party, it is necessary to inquire whether he only gave the mortgage, or whether he bound himself per- sonally for the fulfilment of the obligation. 252 MORTGAGES, TRUST-DEEDS, AND LIENS. In the former case, that is, if he has only mortgaged his property, to secure the fulfilment of an obligation by a third person, no right of action exists against him personally, but merely an action of mortgage against the thing, to have it seized and sold, so that if it perishes, he who mortgaged it shall be released from every species of obligation. On the other hand, if the person who has given a mortgage for another has bound hhnself personally for the fulfilment of the obligation, independently of the mortgage, there shall exist against him a right of personal action, and he shall not be released, even if the thing mortgaged should perish. Although the nullity of the principal obligation includes that of the mortgage, this is to be understood, with respect to a person giving a mortgage for another, only in so far as the prin- cipal obligation is rescinded by an absolute nullity ; for if the principal debtor has only ob- tained a rescission by a plea merely personal, such as minority or coverture, the mortgage given for him by a third person is not less valid, and shall have its full and entire eftect. Conventional mortgages can only be agreed to by those who have the power of alienating the property which they subject to them. Such as only have a right that is suspended by a condition, and may be extinguished in certain cases, can only agree to a moitgage, subject to the same conditions and liable to the same extinction. The property of minors, of persons under interdiction, of absentees and corporations, cannot be mortgaged by contract, in any other form and manuer than that directed by law. An attorney can only hypothecate the property of his priucijial, so far as he has a special power for that purpose. Nevertheless, if the attoraey, on efi"ecting a loan for his principal, had granted a mortgage, and the latter had received the money for the loan, or if it had been usefully employed for his benefit, the principal would be bound to ratify the mortgage, and might be compelled to execute it. If a person contracting an obligation towards another grants a mortgage on property of which he is not then owner, this mortgage shall be valid, if the debtor should ever after acquire the ownership of the property, by whatever right. A conventional mortgage can only be contracted by an act passed in presence of a notary and two witnesses, or by an act under private signature. No proof can be admitted of a verbal mortgage. Hypothecations of ships and other vessels are made according to the laws and usages of commerce. To render a conventional mortgage valid, it is necessary that the act establishing it shall Btate precisely the nature and situation of each of the immovables on which the mortgage is gi-anted. A debtor may mortgage his whole present property or only a specific part ; but in either case it ought to be expressly enumerated, as is said in the preceding article. Future property can never be the subject of conventional mortgage. To render a conventional mortgage valid, it is necessary that the exact sum for which it is given shall be declared in the act. The conventional mortgage, when once established on an immovable, includes all the im- provoincnts wliich it may afterwards receive : La. 3290-3310. Of Legal Mortgages. The law alone in certain cases gives to the creditor a mortgage on the property of his debtor, witliout it being requisite that the parties should stipulate it; this is called legnl mortgage. It is called also tctcit mortgage, because it is established by the law without the aid of any agreement. No legal mortgage shall exist, except in the cases determined by the present Code. The rights and credits on which legal mortgage is founded are those enumerated in the fol- lowing articles : — Minors, persons interdicted, and absentees have a legal mortgage on the property of their tutors and curators, as a security for their administration, from the day of their appointment until the liquidation and settlement of their final account. And the tutors and curators of such persons have a like mortgage on their property, as a security for the advances which they may have made. There is a legal mortgage on the property of persons who, without having been appointed tutors of minors or curators of interdicted or absent persons, interfere in the administration of their property, reckoning from the day on which the first act of interference was done. GENERx\L PRINCIPLES. 253 The children of a previous marriage, where the mother has married again without convok- ing a family meeting to determine whether or not they shall remain under her tutelage, have a legal mortgage on the property of the new hushand fur the acts of tlie tutorship thus unlaw- fully kept hy the mother, reckoning from the day on which the new marriage took place. When eitiier of the parents of a minor shall cause to be adjudicated to him the property which he possessed in common with the minor, the property tluis adjudged remains specially mortgaged in tlie minor's fovor for the payment of the price of adjudication and interest, reck- oning from the day on which it was adjudged. There is legal mortgage, reckoning from the closing of the inventory, on the property of the surviving husband or wife, or heirs, who have been invested by the inventory with the care of the property of the community or succession, until they are relieved from their care or a partition has been made. The wife has a legal mortgage on the property of her husband in the fdlowing cases : — 1. For the restitution of her dowry, and for the reinvestment of the dotal property sold by her husband, and which she brought in marriage, reckoning from the celebration of the marriage. 2. For the restitution or reinvestment of dotal property which came to her after the marriage, either by succession or donation, from the day the succession was opened, or the douation perfected. 3. For the restitution or reimbursement of her paraphernal property. The creditor who has a legal mortgage, except in the case where certain specific property is subjected to it, may exercise his right on all the immovables belonging to his debtor, and on such as may subsequently belong to him : La. 3311-3320. Of Judicial Mortgages. The judicial mortgage is that resulting from judgments (whether these be rendered on contested cases or by default, or whether they be final or provisional) in favor of the person obtaining them. The judicial mortgage takes efiect from the day on which the judgment is recorded in the manner hereafter directed. If there be an appeal from the judgment, and it is confinned, the mortgage relates back to the day when the judgment was recorded. When on the appeal the judgment has only been reversed in part, the mortgage still exists for that part which has not been altered or reversed. The awards of arbitrators give rise to a mortgage only from the day that the homologation has been recorded. Mortgages result from the judgment rendered in other states of the Union or in foreign coun- tries, only in so far as the execution has been ordered by a tribunal of this state, in the manner prescribed by law. Judgments obtained against a person deceased only bear a mortgage on the personal prop- erty of the heir from the day on which execution shall have issued against the heir by virtue of such judgments. The judiinal mortgage may be enforced against all the immovables which the debtor actually owns, or may subsequently acquire : La. 3321-3.328. Of the Rank in "vrhich Mortgages stand -with Respect to Each Other. Among creditors, the mortgage, whether conventional, legal, or judicial, has force only from the time of recording it in the manner hereafter directed. The tutors of minors, and the curators of interdicted and absent persons, as well as husbands, are bound to render public the legal mortgages with which their property is burdened, and for this purpose to require that the acts on which these mortgages are founded shall be recorded without delay in the office provided for that purpose. The undertutors of minors shall be bound personally, and under the penalty of damages, to see that the records are made without delay of the mortgages incurred by the tutors of those minors for the fidelity of their admitiistratiun. In case of neglect on the part of husbands, tutors, undertutors, and curators, in causing to be made the recording ordained hert'in, it may be demanded by the relations of the husband or of the wife, and by the relations of the minor, interdicted or absent persons, or in default of relations, by their friends. It may even be demanded by minors and married women, without any need on the part of the latter of authority from husbands or judges. When, by the marriage contract, the parties, being of age, shall agree that the recording shall exist only on one or more immovables belonging to the husband, the immovables and 254 MORTGAGES, TRUST-DEEDS, AND LIENS. other property not included shall remain free and released from mortgage for the wife's dowry j but it cannot be stipulated that no recording shall be made. The case shall be the same with respect to the immovable property of the tutor of the minor, or that of the curator of the interdicted or absent person, when the judge shall have authorized them in the manner prescribed by law to hypothecate a speciiic portion of their prop- erty by way of security for tiieir administration, as is provided in the title : Of Minors, their Tutorship and Emancipation. In the cases specified in the two preceding paragraphs, the husband, tutor, curator, and undertutor need only demand that the inscription on record shall be made for the immovables specially mortgaged. If the mortgage has not been restricted at the time of appointing the tutor or curator, and if it be notorious that it exceeds the amount in which it is necessary for him to give security, it shall, at his request, be restricted to certain immovables which he shall point out, provided they are thought sufficient to afford a complete guarantee. This request sliall be made as in opposition to the undertutor of a minor, the undercurator of an interdicted person, or curator ad hoc appointed by the court for the absent person, and the judge shall receive the special mortgage offered if he thinks it sufficient, and witli the advice of the family meeting in the case of a minor or person under interdictit>n. The husband also, with the consent of his wife, if she be of age, may demand that the gen- eral mortgage on all his immovables on account of the dowry and other claims enjoying the same right, shall be restricted to the immovables which he sliaU indicate, and which he shall offer to mortgage specially for the preservation of his wife's right. The judge to wliom this demand is made may authorize the husband to give this special mortgage, if he thinks it sufficient, with the assent of five of the nearest relations of the wife, assembled in family meeting. If the wife be a minor, the judge may still grant the authority, provided it be with the as- sent of a family meeting composed as in the preceding paragraph, and of a curator ad hoc ap- pointed to the wife. In all cases where the judge restricts the mortgage to certain immovables, the records or inscri{)tions made on the otlier })r.operty shall be erased : La. 3329-3341. Of Inscriptions of Mortgages — Of the Mode and Effect of Recording Mort- gages. Conventional mortgage is acquired o:ily by consent of the parties, and judicial and legal mortgages only by the effect of a judgment or by operation of law. But these mortgages are only allowed to prq'udice third persons when they have been pub- licly inscribed on records kept for that purpose and in the manner hereafter directed. By the words third persons used in the foregoing paragraph, are to be understood all persons who are not parties to the act or to the judgment on which the mortgage is founded. Consequently, neither the contracting parties nor their heirs, nor those who were witnesses to the act by which the mortgage was stipulated, can take advantage of the non-inscription of the mortgage. All mortgages, whether conventicmal, legal, or judicial, are required to be recorded in the manner hereafter provided. The inscription of mortgages only binds the property of the debtor, when it has been made in the office of mortgages for the parish wliere the property lies. If tlie debtor has immoval>le projierty lying in more than one parish, the inscription ought to be made in the office of mortgages for each of them. No mortgage or privilege shall hereafter affect third parties, unless recorded in the parish where the jiroperty to be affected is situated. Any person entitled to a mortgage or privilege on the property of another person must cause the evidence of such mortgage or privilege to be recorded in the mortgage-book of the parish where the property is situated. If the instrument rm which the mortgage or privilege is based be an authentic act, a copy thereof shall be recorded; if it be an act under private signature, promissory note, or other written instnnnent, it must be proved up and recorded in the manner required for acts under private signature. If there be no written instrument, the person claiming the mortgage or privilege, his agent, or some person having knowledge of the facts, must make affidavit of all the facts on which such mortgage or privilege is based, including the amount of the debt secured by the mortgage or privilege ; and this affidavit must be recorded in the mortgage-book. GENERAL PRINCIPLES. 255 In all cases of special privileges the property subject to such privileges must also be described. To preserve the legal mortgage or privilege existing in favor of a married woman, it shall be the duty of such married woman, or any person for her, to cause to be recorded in the mortgage -book of the parish where tlie property is situated the evidence of her mortgage or priv- ilege. If such evidence be in writing, it shall be recorded in the manner required by law ; if it be not in writing, tlien a written statement under oath, made by the married woman, her hus- band, or any other person having knuwh'dge of the facts, setting forth tlie amount due to the wife, and detailing all the facts and circumstances on which her claim is based, shall be recorded. Before fathers and mothers, who by law are entitled to the usufruct of property belonging to their minor children, shall be allowed to take possession of such property and enjoy the fruits and revenues thereof, they shall cause an inventory and appraisement to be made of such prop- erty, and cause the same to be recorded in the mortgage-book of every parish in the state where they or either of them have immovable property. Whenever any person shall apply to be recognized, confirmed, or appointed as tutor, or shall have been recommended by a family meeting, the judge shall order, and it shall be the duty of such applicant to cause, a true and faitliful inventory to be made of tlie movable and immovable property, credits, deeds, and pa])ers belonging to the minor, and to cause the said property to be valued by two appraisers, appointed by the judge and duly sworn. This inventory shall include the property situated out of the parish as well as that within the parish where the appointment is to be made. After tlie inventory has been completed, the judge shall fix the amount of the bond which the tutor is bound to give. This bond must be recorded in the mortgage-book of the parish in which the tutor resides, and a certificate to that effect, signed by the recorder of mortgages, must be presented to the judge before he can make the appointment, or authorize letters of tutorship to be issued. In the several cases in which the tutor is not required by law to give bond, it shall be the duty of the clerk of the district court of the parish in which the appointment is to be made, to furnish a certificate of the amount of the minor's property, according to the inventory on file in his office. This certificate must be recorded in the mortgage-book of the parish in which the tutor resides, and a certificate to that effect, signed by the recorder of mortgages, must be pre- sented to the judge before he can make the appointment, or authorize letters of tutorship to be issued. The recording of the bond, or certificate of the clerk, as herein provided, shall operate as a legal mortgage in favor of the minor for the amount therein stated on all the immovable prop- erty of the tutor. The tutor shall, within thirty days after his appointment, cause such bond or certificate to be inscribed in the mortgage-book of every other parish in the state in which he owns immov- able property. It shall be the duty of the undertutor to see that these inscriptions are made according to law. The tutor's bond, or the clerk's certificate, as the case may be, recorded as provided in the preceding article, to preserve the mortgage against the natural tutrix, shall operate as a mort- gage on the property, present and future, of the new husband in favor of the minor children of a previous marriage, when his wife has not been continued in the tutorship. When immovable property has been adjudicated to the father or mother of a minor, the act of adjudication must be recorded in tlie mortgage-book of the parish where the property is situated. Before any person shall be appointed curator of a person interdicted or absent, the bond required, to be given in order to obtain the appointment must be recorded in the manner required for tutor's bonds above, and a relation or friend of such persi>n may cause such bond to be recorded. To preserve the legal mortgage against a person who, without having been appointed tutor of a minor, or curator of an interdicted or absent person, interferes in the adminis- tration of the property of such minor, interdicted, or absent person, it shall be lawful for any person to record in the mortgage-book of the parish where such intermeddler resides, and also in any parish where he has immovable property, tlie inventory, if there be any, of the property belonging to such minor, interdicted, or absent person, or other written evidence of 256 MORTGAGES, TRUST-DEEDS, AND LIENS. such property: and if there be no written evidence thereof, a statement under oath of its value. In all cases the person making the above record must state on oath the name of the intermeddler, and that he has actually interfered in the administration of the property belonging to such minor, interdicted, or absent person. All expenses incurred shall be paid by such minor, inter- dicted, or absent person. To preserve the legal mortgage against the surviving husband or wife, or heirs, who have been invested by the inventory with the care of the property belonging to the community or succession, a certificate from the clerk of the court having jurisdiction, setting forth the amount of the inventory, shall be recorded in the mortgage-book of the parish in which such party invested with the care of the property is domiciled. The clerk who grants the certificate must have it recorded. Any person may legally cause such record to be made. The recording of the instruments mentioned in the nine preceding paragraphs shall have the effect of preserving the mortgage or privilege ; but they shall in no manner be evidence of the validity of the debt or claim other than tlie law may award to acts of the kind when un- recorded. The creditors whose inscriptions have been made on the same day, possess a concurrent mortgage, and no distinction is made between the inscription made in the morning and that made in the evening, even although the recording officer may have noted the difference. Mortgages given and inscribed within three mtmths previous to the failure of the debtor shall be declared null, as presumed to be given in fraud of other creditors, unless the person in whose favor the mortgage was granted shall prove that he paid, in obtaining it, a real and effective value at the moment of the contract. The word fraud used in the foregoing article means any unfair preference which the debtor may give to one of his creditors over the others, by selling or mortgaging to him a portion of his property for a debt existing before the contract. The inscription of a judgment obtained against a debtor vnthin ten days preceding his failure shall have no effect against the other creditors of the debtor, if it appears, from the time at which the suit was commenced and the manner in which it was conducted, that the debtor intended to favor the plaintiff", either by consenting that judgment should be rendered against him without the usual delays, or by not making a defence, or by confessing judgment when the cause admitted of ctmtest. An inscription made after the failure or on the day preceding it shall have no effect whatever against other creditors. If a succession, which is administered by a curator or beneficiary heir, is not suflScient to satisfy the creditors, an inscription made by one of them after it is opened shall have no effect against the others. Every notary who shall pass an act of sale, mortgage, or donation of an immovable, shall be bound to obtain from the office of mortgages of the place where the immovable is situated a certificate declarina; the privileges or mortgages which may be inscribed on the object of the contract, and to mention them in his act, under penalty of damages towards the party who may suffer by his neglect in that respect. If a person who has given a mortgage on his property takes advantage of the neglect to register the mortgage, and engages the same property afterwards to another person M'ithout informing him of the first mortgage, he shall be considered guilty of fraud, and shall be subject to such damages towards the party suffering thereby as the nature of the case may require. To obtain an inscription of a public act or judgment, the creditor, either in person or by an agent, shall present an authentic copy of the act or judgment to be recorded to the register r has a process of redemption by payment into court of the sum due : Pa. 1883,125. § 1908. Of the Erasure of Mortgages. Inscriptions of mortgages and privileges are erased by the consent of the parties interested and having capacity for that purpose ; this con- sent to be evidenced by a release, or by a receipt given on the records of the court rendering the judgment on which the mortgage is founded. Inscriptions of mortgages and privileges may be also erased by virtue of a judgment ordering such erasure, in one of the cases hereafter enumerated. This erasure shall be made on a presentation of the acts, receipts, and judgments which operate a release of the mortgages and privileges to be erased, in the same manner as directed for their inscription. The recorder of mortgages for the parish of Orleans, and the parish recorders of the several parishes of the state, are authorized and required to cancel from their records any mortgage for which a release may have been granted by an authentic act, upon the mere presentation of the certificate of the notary public before whom such act was executed, or of his successor in office, stating by said act a release was granted and the erasure allowed ; this certificate shall be filed in the oiEce of the recorder of mortgages where such cancelling is asked for. If the release has been given by an act under private signature, the erasure shall only take place when it has been acknowledged by the mortgagor or jjroved by the oath of one of the subscribing witnesses, unless the register be acquainted with the signature of tlie party who has subscribed the act, and shall agree, on his own responsibility, to make the erasure on the presentation of the original : La. 3371-3375. Art. 192. Foreclosure. § 1920. Methods. We may distinguish five kinds of foreclosure : (1) by simple entry ; (2) by advertisement without possession ; (3) by power of sale ; (4) by judgment; (5) by the old process of bill in equity. Foreclosure by entry exists in a few New England states: N.H., Mass., Me., E.I. Foreclosure by advertisement, or publication, in the same : N.H., Mass., Me. Foreclosure by power of sale, in many : Mass., E.I., N.Y., 111., Mich., Wis., Minn., Md.,* Mo., Cal., Dak., Wy., Miss. See, however, § 1924. In a few, this method is absolutely abolished : Ind., 111., lo., Kan. Where the laws are silent, it presumably exists. For citations, see below. Foreclosure by action, or judgment, in nearlv all states : Mass., Me., Vt., E.I., Ct., N.Y., KJ., Pa., 0., Ind., 111., Wis., lo.^Minn., Kan., Neb., Md., Del.. Ky., Mo., Ark., Tex., Cal., Ore., Col, Wash., Dak., Ida., Mon., Wy., Uta.,* Ga., Ala., ria., Ariz., Nev.* The old equity bill would seem to lie still in a few : Mass. 151,2; E.I.* 176, 14 ; N.J. Chancery, 71 ; 111. 95,16 ; Minn. ; Ga. 270 MORTGAGES, TRUST-DEEDS, AND LIENS. And in Michigan, there is a process of foreclosure by bill in equity specially provided : Mich. 67U0. But in others, " there is no process of foreclosure proper ; no mortgagee can main- tain any possessory action for the estate even after breach ; and the mortgagee's only remedy is by sale :" S.C. 2299. So, in effect, in other states : Ky. Civ. C. 375 ; and see § 1925, C. And in Utah, a bill in equity or suit in ejectment is the only method of foreclosure : Uta. 760. A release, however, of the equity of redemption will be valid: S.C. Generally, no mortgagee can maintain an action of ejectment for recovery of the premises : Wis. 3095. See also in Part IV. The provisions for foreclosing mortgages apply to mortgages of personal property : Wash. 618. So in tlae starred states; see note to Title. § 1921. By Entry. Foreclosure by entry is made (A) by a simple entry on the part of the mortgagee, and made with the mortgagor's written consent, and followed by three years' possession : Me. 90,3-4 ; (B) So, in other states, by a peaceable entry, fol- lowed by three years' possession after such entry : Mass. 181,1 ; Me. ; R.I. 176,4 ; or (C) followed by one year's actual possession: N.H. 136,14. The entry (except where made by written consent, as in ^) must be made in the presence of two witnesses: Mass. 181,2; Me.; R.I. In New Hampshire, there must be publication three successive weeks six months before such time of absolute fore- closure. A memorandum of such entry must be made on the mortgage deed, and signed by the mortgagor or the person claiming under him ; or a certificate of the witnesses to prove the en- try shall be made and sworn to before a justice of the peace; and such memorandum or certi- ficate must, within thirty days after the entry, be recorded in the proper registry of deeds, with a note of reference from each record to the other, if the mortgage is recorded in the same regis- try. Otherwise, no such entry is effectual : Mass. 181,2. So, in Maine, either the written consent referred to in A, or a certificate as above must be recorded in the same way : Me. 90,3. In Rhode Island, both a certificate by the witnesses and an acknowledgment of peaceable entry by the mortgagor or other person delivering possession must be so recorded : R.I. 176,5. § 1922. By Advertisement. In Maine, foreclosure may be made without entry by simple publication in a newspaper, or by personal notice to the mortgagor, with a record of either in the registry of deeds and lapse of three years: Me. 90,5-6. Provided, that the mortgagor and mortgagee may agree upon a shorter time, not less than one year, in which the mortgage shall be foreclosed ; and such agreement, if inserted in the mortgage, is binding : Me. 90,6. § 1923. By Mortgagees in Possession. Foreclosure may be made (1) by publication three successive weeks of a notice that, after a certain specified day, not more than four months after last day of publication, such possession will be held for purposes of foreclosure ; and by retaining actual peaceable possession for one year after said day: N.H. 136,14. When an entry has been made before breach (§ 1883) the time limited for redemption does not run until after condition broken, nor until after a written notice given by the mortgagee to the mortgagor that he will thereafter hold the premises for purpose of foreclosure : Mass. 181,11. Or in such case, instead of giving such notice, the mortgagee may make a new formal entry for broach of condition, or bring action for foreclosure, as in ordinary cases : Mass. 181,12. Such notice of intention or new entry is not effectual, unless a certificate to prove the same is recorded, as in $ 1921 : Mass. 181,13. § 1924. Power of Sale, (a) Foreclosure may be made as directed by a power contained in the mortcjage : Mass. 181,14; RI.* 176,15 ; 111* 95,11 ; Minn. 81, 1 ; 1879,21,1 ; Md.* 66,47 ; Mo. 3310 ; Cal. 7932 ; Dak.* Civ. C. 1729 ; Wy. 1882, 72,16; Miss. 1237. So, it would seem, in other states, where there is no law prohibiting powers of sale. FORECLOSURE. 271 Such sale will be valid ; and the foreclosure is absolute immediately upon the sale : Mass. 181,21 ; Mo. See § 1944. And it bars dower, if the wife j\)ined in the mortgage, or had no dower at the time it was made : Mass. 18], 19. See Art. 321. It is always necessary (1) that some default shall have occurred : N.Y. Civ. C. 2387 ; Mich. 8497; Wis. 3523-4; Minn. 81,2; Dali. C. Civ. P. 597; Wy. 1882,72,1-2; (2) "that a conditional judgment have been entered: " Mass. ; and (3) sale may not be made if an action has been begun to recover the debt unless it has been discontinued, or the execution returned unsatisfied in whole or part : N.Y. ; Mich. 8498 ; Wis. ; Minn.; Dak. C. Civ. P. 598 ; Wy. 1882,72,2. And (4) the mortgage and all assignments must have been duly recorded : N.Y., Mich., Wis., Minn., Dak., Wy. If the power is silent as to the manner of sale, sale may be made, after condition broken, for cash, upon such notice as is required for sheriff's sales of like property : Miss. 1237. If sold by decree of court, the mortgagee must, within ten days after the sale, make a report to the court, and the same may be confirmed or set aside, and a new sale ordered : Mass. 181,15. Any person interested may appear and be heard : Mass. If the tenant in the action is not seized in fee of the whole equity of redemption, no decree for a sale can be made until all parties interested, including married women having a right or possibility of dower, have been summoned to appear and be heard : Mass. 181,16. No sale or transfer by the mortgagor shall impair or annul any right or power of attorney given in the mortgage to the mortgagee to sell or transfer the property as agent of the mort- gagor: Mass. 181,20. (B) Or, where a power of sale is contained in the mortgage, the sale may also be made, if the mortgagee prefer, (1) under decree of court : Mass. 181,17 ; (2) by statute process, as pre- scribed in E : Wy. 1882,72,16. (Cj If the mortgagor or grantor of a trust-deed, or other owner of the equity, die, no sale can be made under the power ; but the mortgage must be foreclosed in the usual (^ 1925) way : IlL 95,13. (D) In others, powers of sale are absolutely prohibited in mortgages and trust- deeds ; and no real estate can be sold vnider such power, or in any way except by judg- ment or decree of court, as in mortgages without a power: Ind. 1088 ; 111. 95,22 ; lo. 3319; Kan. 80,399. (E) In many states, even where there is a power of sale, a special process is by law provided. Thus, besides the process required by the power, notice must be given by three weeks' publication, once a week, in some newspaper published in the town where the land lies, if any ; if none, in the county, the first publication to be twenty-one days before the sale: Mass. 181,17 ; 1882,75. In New York, notice by twelve weeks' pub- lication in such newspaper, by posting for the same period of time, and by service upon the mortgagor or other parties interested : N'.Y. Civ. C. 2388-9. In Michigan, notice by such twelve weeks' publication only: Mich. 8499. In others, notice "by such pub- lication for six weeks : Wis. 3526 ; Minn. 81,5 (and by service on the person in possession) ; Dak. C. Civ. P. GOO; Wy. 1882,72,-3-4. In Illinois, by four weeks' piib- lication : IlL 95,14. Such notice must, generally, contain the names of the mortgagor and mortgagee or assignee, the date of the mortgage and when recorded, the amount claimed to be due, a description of the premises, and the time and place of sale : N.Y. C. Civ. 2391 ; Mich. 8500 ; Wis. 3527 ; Minn. 81,6 ; Dak. C. Civ. P. 601 ; Wy. In Maryland, the mortgagee, or other person authorized to make the sale, must first give bond to the State : Md. 66,48. He must give notice as directed in the mortgage ; if there be no such direction, by tvcenty days' notice by advertisement and by posting : Md. 66,49. The sale must be at public auction, made by some person named for that purpose in the mortgage, or by the sheriff : N.Y. Civ. C. 2393 ; Mich. 8501 ; Wis. 3528 ; Minn. ■ 81,7 (by the sheriff) ; Dak. C. Civ. P. 602; Wy. 1882, 72,5. The mortgagee or his assigns may fairly and in good faith purchase at the sale : E.I.* 176,15 ; N.Y. Civ. C. 272 MORTGAGES, TRUST-DEEDS, AND LIENS. 2394 ; Mich. 8504 ; Wis. 3531 ; Minn. 81,10 ; Md * G6,55 ; Dak. C. Civ. P. 605 ; Wy. ih. 8. Provided, that he give the mortgagor written notice of such intention : E.I. If the mortgaged premises consist of distinct tracts or lots, they must be sold separ- ately ; and no more shall be sold than is necessary to satisfy the amount due on the mortgage, with interest and costs : Mich. 8503 ; Wis. 3530 ; Minn. 81,9 ; Dak. C. Civ. P. 604 ; Wy. ib. 7. The ofScer or person making the sale must forthwith execute and deliver a deed to the purchaser of the premises bid off by him : Mich. 8505 ; Md.* 66,54 ; Wy. ib. 9. In other states, a deed is not necessary, but the purchaser takes title without it at the end of the period of redemption : N.Y. Civ. C. 2400 ; Minn. 81,12. In several, such officer, etc., gives a certificate of sale setting forth the premises sold, the sum paid, and the time after which the purchaser will be entitled to a deed, if not redeemed : Wis. 3532 ; Minn. 81,11 ; Dak. C. Civ. P. 606. The officer making the sale is to execute a deed only when the time for redemption (§ 1943) has elapsed: Wis. 3534; Dak. C. Civ. P. 609. The surplus, if any, is paid to the mortgagor: Mich. 8510; Wis. 3535 ; Minn. 81, 18 ; Wy. ib. 11. It is paid into court: KY. Civ. C. 2404. But if, before the surplus is thus paid to the mortgagor, any person who has a subse- quent mortgage or lien files au affidavit stating the amount, the surplus is paid into court for his benefit : Mich. The sale must be reported to court and confirmed as in case of sales by trustees appointed by court : Md. 66,50. It must always be made in the county where the land lies, or some part of it lies : Md. 66,56 ; Wy. So, probably, in all states. Evidence of such sale may be perpetuated by recording in the registry of deeds affidavits (1) of the publication of notice, by the publisher or printer of the newspaper : N.Y. Civ. C. 2396-7 ; Wy. ib. 12 and 14 ; (2) of the fact of the sale by the person niakiug it, with price bid, time and place, name of purchaser, etc. : N.Y., Wy. ; (3) of liis acts in the premises, fully and particularly, with a copy of the notice of the sale: Mass. 181,18 ; E.I. 173,11 ; (4) The deed must be recorded within twenty days after the sale : Mich. So, the certificate is recorded within ten days of the sale : Wis. Such affidavit must be recorded within thirty days after the sale : Mass. The affidavit above mentioned, or a certified copy, is evidence that the pow^er of sale w'as duly executed, if it appear in it that the mortgagee has complied with such power and with the law : Mass. It is prima facie evidence of the truth of the matters therein stated : E.I. ; N.Y. Civ. C. 2398. If the mortgagor has a legal counter-claim, or other defence, he may obtain an injunction suspending proceedings under this section: Dak. See § 1941. § 1925. By Action. (A) Foreclosure by action is made (1) in a court of law : Mass. 181,3; Me. 90,4; Vt. 1253; RI. 176,4; Ct. 19,17,5,2; N.Y. Civ. C. 1626; N.J."-'' Mortgages, 4; Pa." Deeds, 122; 0. 5316; Ind. 1095; 111." 95,17; Wis. 3154; Minn. 81,27; Kan. 80,399; Del." 111,55; Mo. 3927; Ark.* 5168; Tex. 1340; Cal.* 10726; Ore.* Civ. C. 410; Nev.* 1309; Col. Civ. C. 229; Wash.* 609,618 ; Dak.* C. Civ. P. 616 ; Ida.* Civ. C. 468 ; Mon.* Civ. C. 346 ; Uta.* C. Civ. P. 606 ; Ga. 3962 ; Ala. 1885,39 ; Fla.* 153,5 ; Ariz.* 2684 ; (2) in equity : N.J.' Chanccrij, 71 ; lo. 3221 ; Neb. 2,845 ; Md. 66,65 ; (3) by entry under legal pro- cess and continued actual possession for one year : N.H. 136,14. (B) The judgment is (1) for the debt and interest: Tex., Fla.; (2) for " the amount due :"'lnd. 1097 ; 111. 95,19 ; Wis. 3162 ; lo. ; Minn. 81,29 ; Kan. ; Cal* ; Dak. C. Civ. P. 617 ; Wy.* Civ. C. 381 ; Ga. 3968; Ala. ; Ariz.*; Nev.* But the judgment draws interest from its date to the time of the sale or payment, at ten per cent : Wis. 3164. (C) Execution is (1) by sale, in most states : N.Y. ; N.J. ; "• ' Pa. ; * 0. 5316 ; Ind. ; 111. 95,21 ; Wis. ; lo. ; Minn. ; Kan. ; Neb. 2,846 ; Md. ; Del.* 111,57 ; Ky. Civ. C. FORECLOSURE. 273 374 ; Mo.' 3297,3307 ; Ark* 5169 ; Tex. ; Cal.* ; Ore.* ; Col. ; Wash. 611 ; Dak.* ; Ida.*; Mon.*; Wy.* ; Uta.* ; Ga. 1967; Ariz.*; Nev.* (2) By writ of possession, or by conditional judgment, on motion of the mortgagee, mort- gagor, or his assignee, that the plaiutitf have possession, unless the judgment for the amount due be satisfied within two months : Mass. 181,;j-6; Me. 90, 8-9; R.I. 216,7 ; Ala. (one mouth). (3) Execution may, however, be satisfied by levy: Mass. 181,7. Possession obtained by such action, and continued peaceably for three years, forever bars the right of redemption : Mass. 181,1 ; Me. 90,4. Except when a shorter time was stipulated for in the mortgage (see $ 1922) : Me. 90,6. (4) In all cases, by conditional judgment for the sum due aud costs, that if the mortgagor do not pay such judgment within a time therein limited (not exceeding one year, in Vermont), the plaintiff shall have a writ of possession : Vt. 1254,1257; Ct. 1882,61 ; 1875,54. (D) If no one bids at the sale, the estate is delivered to the plaintiff discharged of all equity of redemption and of prior incumbrances by the mortgagor : Pa. (E) It is always necessary to foreclosure that a default has occurred : Pa., Wash. (F) Notice of the action must have been given the mortgagor (1) as in chancery practice : m. 95,18; (2) by service and publication as in $ 1924 : Minn. 81,28. No person holding a conveyance from or under the mortgagor, or having a lien on the property mortgaged, which conveyance or lien is not recorded, need be made a party to the action; but the judgment and proceedings are, nevertheless, conclusive as against such person : Uta.* (G) Notice of the sale must be given by twenty days' wiitten notice to the mortgagor: R.I. 176,15. No such sale can be made until one year after the judgment or order of sale : Wis." 3162. There must always, however, be notice by three successive weeks' advertisement in the town (or county) where the land lies : Mass. (H) The sale is frequently to be made as in the case of sales on execution : N.J. ; Ind. 1100; Wis. 3168; Minn. 81,29; Kan.; Del. 111,58; Tex. ; Wash. 613; Dak. C. Civ. P. 622 ; Ga. It must be in the county where the land lies. It is made by the sheriff of the county : Ind. ; Kan. ; Neb. 2,852 ; Tex. ; Dak. The mortgagee or his representatives may fairly and in good faith purchase at the sale : Minn. 81,31. Such sale must be confirmed by the court : Minn. 81,32. (I) Process of Sale. If a trust-deed or mortgage, with power of sale, is silent as to place and terms of sale and mode of advertising, a sale may be made after condition broken, for cash, upon notice as required for sheriff's sales of like property, at any suitable place and time after the required notice : Miss. 1237. (J) All the land may be sold under order of court, if necessary or beneficial : N.Y. Civ. C. 1637 ; Minn. 81,41 ; Nob. 2,860 ; Cal. 10728 ; Uta.* But generally only so much shall be sold as is necessary to satisfy the mortgage, in- terest, aud costs: Ind. 1100 ; Wis. 3154 ; lo. 3321,3326; Minn. 81,9 and 35; Neb. 2,858 ; Wash. ; Dak. C. Civ. P. 628 ; Ida. ; Mon. ; Uta. ; Nev.* (K) The sale must be on a credit as follows : (1) three to six months : Ark.* 5171 ; (2) it may not be on credit, unless the mortgagee consent : Md. Or, besides the above, it may be on instalments equivalent to not more than four months' credit on the whole : Ark.* (L) Security must be given by the purchaser as follows : by bond, mth surety approved by the person making the sale : Ark.* Besides this, the mortgagee retains a lien on the estate sold for the price : Ark. (M) The property cannot be sold for less than two thirds the appraised value: Ark.-^ 4759. Provided, that if no bids be made to the amounts respectively above provided, it may be offered again a year thereafter, and sold to the highest bidder without regard to price : Ark.-'" The mortgagor, or grantor, in a trust-deed may, however, where the sole consideration is money loaned, waive this right of sale and appraisement : Ark. 4763. (N) The appraisement mentioned above is made before the sale by three disinterested ap- praisers appointed by a justice of the peace : Ark. 4760. (O) The officer or person making the sale is to execute and deliver a deed to the purchaser when the terms of the sale are fully complied with : Wis. 3169 ; Del. But in others, he delivers a certificate as in $ 1924: Minn. 81,11 and 35; Dak. C Civ. P. 623. 18 274 MORTGAGES, TRUST-DEEDS, AND LIENS. NoTKS. — " By scire Jaclas. * By levari facias. <' Hy fieri facias. <^ This foreclosure by action in a court of law is allowed only when no person but the mortgagors and mortgagees are interested, and there is but one mortgage on the land. « This provision does not apply to cases of railroad mortgages. -^ Applies also to trust-deeds. § 1926. The Proceeds of the sale (§§ 1924,1925) are generally to be applied to the satisfactiou of the debt: Wis.'' 3155 ; Tex. ; Ore. ; Col. Civ. C. 229; Dak.* C. Civ. P. 610,624; Ida.* Civ. C. 469 ; Mon.*; Uta.* C. Civ. P. 606 ; Ga. 3969; Ariz.* If there be a surplus, it is to be paid to the mortgagor : Pa. Deeds, etc. 123; Ind. 1104; lo. 3324; Minn. 81,37; Neb. 2,854-5; Md.* 66,53; Del. Ill, 60 ; Cal.* 10727 ; Col. Civ. C. 230 ; Wash. 617 ; Dak.* ; * Ida.* ; Mon. Civ. C. 347 ; Uta.* C. Civ. P. 607 ; Ga. ; Ariz.* 2685 ; Nev.* 1309. It is paid into court for the benefit of the persons entitled : N.Y. Civ. C. 1633 ; N. J. Mortgages, 4; Chancery, 72; Wis." 3155 ; Ore. Civ. C. 415; Dak.«; Nev.* J310. If there is no bid, the plaintiff has a writ of liherari facias : Del. 1 1 1,58. If the proceeds of a sale under power or otherwise are not sufficient to cover the amount, execution (or a decree) issues in most states, for the residue against other property of the mortgagor: N.Y. Civ. C. 1627; Ind.'' 1099 ; Wis." 3156, 3162; 10.3322; Minn." 81,33 ; Neb.^ 2,847; Md.«'« 66,65; Ky. Civ. C. 376 ; Mo.<* 3305-6 ; Ark.* 5170,5172 ; Tex. ; Cal* 10726 ; Ore.*'^ Civ. C. 410,413 ; CoL ; Wash.'' 612; Dak.'^-^ C. Civ. P. 136,617; Ida.*; Mon.*; Wy.* Civ. C. 381 ; Uta.*; Ariz.; ISTev.* Compare also §§ 1867,1932. But in New Jersey, no decree may be made for payment of such residue in case of a chan- cery suit : N.J. 1880,170,1. A suit for such residue may be maintained on the mortgage bond : N.J. 1880,170,2. Notes. — "Of sales under foreclosure by action; § 1925. * Under power of sale. <^ Only when there is an express written agreement, either in the mortgage or in a separate written instrument, for the payment of the mortgage debt.' See § 1867. ^ Only when the mortgagor, etc., appeared, or was notified by personal service. § 1927. Effect. (A) The purchaser of a sale under either §§ 1924 or 1925 takes only (1) the estate or interest of the mortgagor at the time of executing the mortgage : N.J. Chancery, 72 ; Mortgages, 5; Pa. Deeds, etc. 124; Mich. 8506; Wis. 3169,3539; Minn. 81,12 ; Md.« 66,52; Del. 111,59 ; Dak. C. Civ. P. 614,623. (2) He takes the same estate as would have vested in the mortgagee had the mortgage been foreclosed : N.Y. Civ. C. 1632 ; (3) His conveyance is valid as against the mortgagor, mortgagee, parties to the action, and their privies : N.Y. Civ. C. 2395 ; Wis. ; Neb. 2,853 ; Mo. 3308; Dak. But in several states, the mortgagor may retain possession until the purchaser's title becomes absolute, under § 1943 : Wis." 3533 ; Dak. C. Civ. P. 617. If the judgment is reversed, the sale, etc., is not avoided, but restitution is made of the mr)ney or price : Pa. Deeds, etc. 125. No person having a valid subsisting lien created before the mortgage is prejudiced by such foreclosure sale : Mich. All purchasers under the sale have the same rights and remedies against the tenants of the mortgagor as he had ; and vice versa, the tenants against tlie purchaser, except that no lease made after the mortgage is valid against the purchaser: ]\Id. 66,61. (B) The deed or the recitals therein is prima facie evidence (1) that due notice was given : Mo. 1881, p. 171 ; (2) of the default : Mo. ; (.'3) of the receipt of the purchase-money : Mo. ; (4) of all other essential facts : Mo. The sheriff's certificate of sale under a mortgage power h prima facie evidence that all re- quirements of law have been complied with : Minn. 1883,112,1 ; and of title in fee in the purcha.ser after time of redemption has expired : Minn. If the foreclosure was by writ of possession, such writ must have been recorded in the regis- try of deeds : Me. 90,3. Note. — " Applies to sales under a power only (§ 1924). FORECLOSURE. 275 § 1928. Time of Foreclosure. (A) Generally, any proceeding in foreclosure may be commenced immediately after breach : Ind. 109-5 ; Mich. 8497 ; Del. 111,55. But only twelve mouths after breach, in Pennsylvania. [Deeds, 122.] If the mortgagor have died, no sale can be had under a power until nine months after his death : Mo. 145. (B) Proceedings for foreclosure under a power may be commenced (1) at any time within fifteen years after maturity of the note : Minn. 81,1 ; 1879,21 ; (2) within ten years after the breach, or after the last payment on the mortgage : N.C. 152. For other states, see in Part. IV., Statute of Limitations. In Georgia, it is provided that when a mortgage is given to secure several debts falling due at different times, the mortgagee may foreclose when the first becomes due : Ga. 1965. And that the court will control the surplus so as to protect the lien created for the debts not due: Ga. § 1929. For Instalments Due. Generally, a moitgage may be foreclosed in the same manner for any instalment due whether (1) of the principal : Yt. 1255; N.Y. Civ. C. 1634; N.J.'' Chancery, 74; Ind. 1102 ; Mich.* 8498,6711 ; Wis. 3157 and 3525 ; Minn. 81,3 and 35 ; Neb. 2,857 ; Cal.* 10728 ; Ore.* Civ. C. 417 ; Wash. 615 ; Dak. C. Civ. P. 599 ; Ida.* Civ. C. 470 ; Mon.* Civ. C. 348 ; Uta.* C. Civ. P. 608 ; Ga. 1965 ; Ariz.* 2686; Nev.* 1311. (2) Or of the interest: N.J.;" Mich.; Minn.; Neb.; Ore.*; Col. Civ. C. 231; Wash. ; Dak. But in Illinois, only when the last instalment has become due : 111. 95,18. In such case the court may either decree a sale to satisfy the whole debt, in- cluding instalments not yet due, or a sale to satisfy only the instalments then due: N.Y. Civ. C. 1636-7 ; N.J.'' ; Ind. 1103-4 ; Wis. 3158 ; Minn. 81,4 ; Neb. 2,858 and 860 ; Cal.* ; Ore. ; CoL ; Wash. 616,617 ; Dak. C. Civ. P. 628-630 ; Ida.* ; Mon.* ; Uta. ; Ariz.* ; Nev.* If the former, future instalments may be paid with the rebate of interest : NY; N.J.;«'<^ Ind.; Wis. 3160; Minn.; Neb. 2,861; Cal*; Ore.* Civ. C. 418 ; Col. ; Wash. ; Dak. C. Civ. P. 631 ; Ida.* ; Mon.* ; Uta.*; Ari.* ; Nev.* Or it may order the instalments to be paid accordingly, and redemption or writ of possession not more than one year after the last one fills due : Vt. 1255. So, in other states, the court may direct the proceeds to be invested and paid to the mortgagee as the principal or interest falls due : Wis. ; Neb. ; Ga. 3970. If the latter, order of sale may be made summarily npon the decree for default of any future instalment when due : N.Y. Civ. C. 1635 ; Ind. 1102 ; Mich." 6712 ; Wis.*^ 3157,3159 ; Minn. 81,40 ; Neb. 2,857 and 859 ; Cal.* : Ore. ; Col. ; Dak. ; Ida.* ; Mon.* ; Uta.* ; Ariz.* ; Nev.* Notes. — « In case of foreclouire in a court of equity only. * Applies also to foreclo.sure by bill in equity {§ 1930). " If the mortgage ■ is willing to receive the same. '^ In cases of foreclosure by action only (§ 1925). § 1930. Foreclosure by ^ill. Any person may hring a bill to foreclose, according to equity practice, in the county where the land lies: Mass. 151,2; R.I. 176,14; Mich. (5701 ; Ga.* 3979a,3968. So, it seems, in New Jersey and Illinois. See § 1920. " Strict foreclosure may be decreed in an action to foreclose when proper: " Minn. 81,43. But not until one year after the judgment finding the amount due : Minn. In Vermont, the mortgagee brings his bill or petition, and the decree finds the amount due, and provides that unless it be paid, with interest, the mortgagor shall be foreclosed ; and if payment or performance is not made as provided by such decree, a writ of possession issues : Vt. 760-1,767. In Michigan, the court decrees a sale of the premises, or so much as is necessary, but not within a year from the date of the bill ; and may also decree that the mortgagor shall pay any balance due after the sale. Pending such bill no proceedings can be had at law for the recov- ery of the debt unless authorized by the court : Mich. 6701-6703. 276 MORTGAGES, TRUST-DEEDS, AND LIENS. Such sale is made by court commissioner : Mich. 6707 ; at public auction : Mich. Only a part may be sold if it can be sold in parcels without injury to the rest : Mich. 671,3 and 6715. If all is sold, the proceeds are applied to the whole sum due, with rebate of interest ; or the court may direct the surplus proceeds to be put at interest for the benefit of the mortgagee, to be paid according to the terms of the mortgage : Mich. 6716. The deed vests in the purchaser only such estate as would have vested in the mortgagee had the mortgage been foreclosed : Mich. 6708. It is a bar to all parties to the suit and their heirs or persons claiming under them : Mich. The proceeds of the sale are applied to pay the debt and costs, and any surplus is paid into court for the defendant or other persons entitled : Mich. 6709. In Illinois, a decree may be rendered for the balance due the complainant over and above the proceeds of the sale, and execution rendered therefor, the same as when the decree is solely for the payment of money. And such decree may be rendered conditionally, or after the sale and ascertainment of the balance due ; provided that such execution may issue only in cases where personal service has been had upon the defendant or defendants personally liable for the mortgage debt, unless their appearance has been entered in the suit : 111. 95,16. § 1931. Pending Foreclosure. (A) The court may, for cause shown, grant a writ of estrepement or an injunction restraining waste or injury by the person in possession : Mass. 179,12 ; Pa. Waste, 6 and 18 ; Wis. 3164,3177 ; Dak. Civ. C. 483 ; Ida. Civ. C. 483 ; Mon. Civ. C. 360 ; Uta. C. Civ. P. 627 ; Ariz. 2699. § 1932. Concurrent Remedies. (A) In two states, the foreclosure of a mortgage does not preclude the mortgagee creditor from recovering so much of the claim to secure which the mortgage was given as the property mortgaged will not satisfy : Ct. 18,7.2 (see below) ; N.J. 1880,170,2; 1881,147,1. And an action brought to recover such balance does not, in Connecticut, open the foreclosure. The action to foreclose nuist, however, be brought first, and the suit on the bond after the foreclosure sale : N.J. 1881,147. But, if after foreclosure the person entitled to the debt recovers it, or any part of it, on the ground that the value of the mortgaged premises is less than the sum due, such recovery opens the foreclosure, and the person entitled may still redeem one year thereafter (or six months, in New Jersey) : Mass. 181,42 ; N.J. ib. 3. In this case the value of the property mortgaged is to be estimated by appraisers at the time at which the right of redemption expires : Ct. 1878,129,2. (b) But during an action at law pending for recovery of the debt, a suit for foreclosure cannot be maintained, nor thereafter, unless judgment in such action is given for the plaintiff, and execution returned unsatisfied in wdiole or part : N.Y. Civ. C.*1629-1630 ; Ind. 1101 ; Mich." 6706 ; Neb. 2,851 ; Ore.* Civ. C. 416 ; Wash. 614 ; Dak. C. Civ. P. 621. (C) Such foreclosure does, however, bar any action upon the mortgage debt, unless the person liable for payment thereof was made a party to the foreclosure : Ct. 1878,129,1. See also $ 1926. (D) And vice verm, while an action of foreclosure is pending no action on the debt can be brought (unless by leave of court) : N.Y. Civ. C. 1628 ; Ind. ; Mich. 6703 ; Neb. 2,848 ; Wash. ; Dak. C. Civ. P. 618. (E) The judgment debtor's equity of redemption cannot be sold under an execution issued upon a judgment in an ordinary suit for the mortgage debt, or any part of it : N.Y. Civ. C. 1432; Ind. 1105. If OTK. — " i. c, no equity bill for foreclosure can be maintained. § 1933. Foreclosure by Assignee of Debt. In Connecticut, when any mortgage is foreclnsod by the person entitled to collect and receive the money secured thereby, but to whom the legal title to the premises has never been conveyed, the title shall, upon the expiration of the time limited for redemption and failure to redeem, vest in him in the same manner as in REDEMPTION. 277 the mortgagee if he had foreclosed, provided the person so foreclosing forthwith record the deed of foreclosure : Ct. 18,7,5. An entry for breach of condition and an action for possession (§§ 1921,1925) may be made or brought by the assignee of the mortgage, whether such assignment is by deed or by operation of law, in the same manner as by the original mortgagee: Mass. 181,8. The assignee of a mortgage may sue in his own name : Pa. Deeds, etc. 130. See $ 1871. § 1934. Record of. (A) When any mortgage has been foreclosed, and the time limited for redemption has passed and the title become absolute in the mortgagee, he shall cause" a certificate describing the premises, deed of mortgage on which foreclosure was had, liber and folio, and time when such title became absolute, which certificate shall be recorded: Ct. 1882,61. (B) In two others, the officer delivers certificate of sale to the purchaser, which is acknowl- edged, executed, and recorded like a deed, within twenty days of sale, and becomes an abso- lute conveyance after expiration of time of redemption: Mich. 8505; Minn. 81,11-12. See $ 1943. (C) The affidavit of the party making entry under § 1921, and of the witnesses thereto as to the time, manner, and purposes of such entry, and a copy of the published notice verified by affidavit as to the time, place, and mode of publication, may be recorded in the registry of deeds for the county in which the lands lie, and shall be evidence of the entry and publication : N.H. 136,16. See also § 1921. (D) The decree of foreclosure must be recorded when the time for redemption has expired, or the foreclosure will not be valid as against purchasers, mortgagees, or attaching creditors prior to such record ; and such purchasers, etc., may redeem as though the time had not ex- pired : Vt. 768-9. (E) So, in others, an affidavit of the sale as above by the person making it, and of the notice given by the printer, etc., may be so recorded: Mich. 8511 ; Wis. 3536 ; Minn. 81,19-20; Dak. C. Civ. P. 611-612. (F) Affidavit of the time and manner of sale, the bids and purchasers, and of the various notices required, in case of sale under a power or by action (§§ 1924-5), may be recorded in the same manner : N.Y. Civ. C. 2396-8. And they are presumptive evidence of the facts therein stated : N.Y. Civ. C. 2393. The register of deeds must make a reference to such affidavits upon the margin of the record of the mortgage : N.Y. Civ. C. 2399. (G) The clerk of court, when a mortgage has been satisfied by foreclosure and sale, and the whole debt has been paid, is to enter satisfaction in the recorder's office : Ind. 1098 ; Kan. 1885,145. See also § 1905. (H) So, in Michigan, the mortgagor may enter such clerk's certificate of foreclosure and satisfaction : Mich. 5702. Note. — « Under penalty of $5 a month to any person suing, for neglect. Ct. 18,7,4. § 1935. Foreclosure against Assignees. Actions of foreclosure may be brought against the person who is in possession of the mortgaged premises, and the mortgagor may be joined as a party : Mass. 181,9; Me. 90,13. § 1936. Parties. Mortgagees or lien-holders of record must be made parties, or they are not bound by the foreclosure ; otherwise, if their mortgages, etc., are not re- corded : N.J. Chancer^/, 78; Cal. 10726; Col. Civ..C. 229; Ida.*'^Civ. C. 468; Mon.* Civ. C. 346 ; Uta. C. Civ. P. 606. Art. 194. Redemption. § 1940. Opening Foreclosure. Even in states where there is no redemption allowed after sale or absolute foreclosure, the decree Tnay yet be reopened under this article. No such sale shall be set aside as invalid, by reason of any defect in notice or publication, or proceedings, unless within five years of sale : Minn. 1883,112,1. Persons under disability have five years after removal of such disability : Minn. 278 MORTGAGES, TRUST-DEEDS, AND LIENS. § 1941, Redemption Pending Foreclosure. Ill many states, the proceedings in foreclosure may be stopped at any time before the decree (or, in New York, Indiana, Michigan, Wisconsin, Missouri, Oregon, at any time before actual sale), if the amount due with interest and costs is brought into court, or paid to the officer or to the mortgagee : Mass." 181,21-2 ; Me. 90,6 ; Ct. 19,17,5,2 ; KY. Civ. C. 1634r-5 ; KJ. Chancery, 77 ; Mortgages, 1-2 ; Ind. 1097 ; Mich.* 6711,6712 ; Wis.'^ 3165 ; Minn. 81,39 ; Neb. 2,856 ; Mo. 3314 ; Ark.* 4748 ; Ore. Civ. C. 418 ; Wash. 611 ; Dak.^ C. Civ. P. 627. See also § 1925, F (2). At any time before sale persons having junior liens may pay mortgagee the debt, interest, and costs, and have his whole interest assigned : lo. 3323. If it appears, in any action for foreclosure, that nothing is due on the mortgage, judgment is rendered for the defendant, and for costs, and he holds the laud discharged of the mortgage : Me. 90,10. Notes. — « Any condition other than the payment of money must also be performed. * Applies to foreclosures by bill in equity only. « Xo foreclosures by aclion only (§ 1925). § 1942. Redemption after Condition Broken, but before Foreclosure. At any time before absolute foreclosure, the mortgagor, or person claiming under him, may redeem on paying the mortgage debt or performing any other condition of the mort- gage, paying all other sums due on the mortgage, and costs of suit if there has been suit to foreclose : Mass. 181,22 ; Me. 90,6 ; Minn, 40,37. Redemption may be made in the same way before an entry for breach of condition : Mass. 181,24; Minn. If the mortgagee does not accept tender so made, and discharge the mortgage, the mort- gagor has a suit in equity for redemption ; but such suit must be brought within one year after the tender, or such tender will not prevent foreclosure: Mass. 181,25; Me. 90,15 and 19. Such suit for redemption may be brought at any time before foreclosure without a previous tender of performance: Mass. 181,27; Me. Or if the tender was insufficient: Mass. 181,30. See also § 1883. The decree in such suit is that upon payment of the sum found to be due by the court, or performance of any other condition wathin such time as the court orders, the plaintiff shall have possession discharged of the mortgage : Mass. 181,33. When the mortgagee has not unreasonably refused to render account (see $ 1902) the court may award him interest on the sum due, at a rate not exceeding twelve per cent a year, from the exj)iration of three years after his entry to the time of such decree of redemption : Mass. 181,34. If it appears that the mortgagee has received from the rents and profits a sum exceeding the sum due on the mortgage, the court awards execution against him for such excess (com- pare § 188.3) : Mass. 181,36 ; Me. 90,21. (B) The mortgagor may also maintain a writ of entry in the case contemplated by this section : Me. 90,.31. (C) IIo has also a suit for damages against the mortgagee for refusing to release (compare $ 1902) : Minn. § 1943. Redemption after Foreclosure. Except as in § 1940 provided, the expiration of the periods respectively limited in §§ 1921,1922,1925, or the sale, and deed or writ of possession delivered under §§ 1923-1925, operate as absolute foreclosure, and the mortgagee's title (subject to § 1927) is absolute: N.H. 136,14 ; Mass. 181,21 ; Me. 90,4 ; Vt. 1257 ; R.I. 176,4 and 14 ; N.J. Chxincery, 78 ; Pa. Deeds, etc. 122 ; Neb. 2,853 ; Md. 66,52 ; Mo. 3310 ; Fla. 153,5. But in other states, redemption is allowed as is behjw in this article provided : Mich. 8506; and see $ 1944. REDEMPTION. 279 § 1944. General Principles. In several states, redemption after a foreclosure sale under power or otherwise is allowed (A), as in the case of sales of land upon execution (see Part IV.) : lo. 3321 ; Kan. 80,399 ; Ore. Civ. C. 414 ; Col. 1860 ; Dak. C. Civ. P. 607,634; Uta.* C. Civ. P. 606 ; Ala. 2877. Within one year after the sale : Dak. (B) In others, redemption maybe made within one year after the sale (1) on paying the sum due, interest at the rate specified in the mortgage, and costs : Minn. 81,13 and 34-5 ; (2) on paying the price paid at the sale plus interest at ten per cent, or (in Michigan), at the rate prescribed in the mortgage if less than ten per cent : Mich. 8507 ; Wis. 3533 ; Ark. 4759. (C) An action to redeem a mortgage of real estate, with or without an account of rents and profits, may be maintained by the mortgagor or those claiming under him against the mort- gagee in possession or those claiming under him, unless he or they have continuously held an adverse possession of the mortgaged premises for (1 ) five years after some breach of condition : Cal. 10346 ; Ida.* C. Civ. P. 166 ; (2) for ten years : N.C. 152 ; (3) for twenty years thereafter : N.Y. Civ. C. 379 : (4) for fifteen years : Ky. 71,4,16 ; (5) for seven years : Uta. C Civ. P. 2U3. (D) ''Any person entitled in equity to redeem mortgaged property" may bring a bill for that purpose, according to the principles of equity and usages in chancery : R.I.* 176,13. If there is more than one such mortgagor or person claiming under a mortgagor, some of whom are not entitled to maintain the action as provided above, any one of them who is en- titled may redeem therein a divided or undivided part of the preniises according to his interest, paying and having account for his proportionate part : Cal. 10347. "Waiver. The right of redemption provided in this section may, however, in Arkansas, be waived by the mortgagor by special clause in the mortgage : Ark. 4763. Record. Upon payment as above to the register of deeds, or upon presentation to him of the mortgagee's certificate of satisfaction (^ 1905), he is to destroy the deed and make entry of the discharge on the record of the mortgage : Mich. 8508 ; Wis. 3105 ; Minn. 81,15. If the mortgagee, etc., refuse to make such certificate, he is hable as in § 1902 : Mich. 8509. § 1945, Redemption by Creditors. (A) Any junior mortgagee or lien-holder has frequently the privilege of redeeming under § 1944, or of otherwise satisfying a prior mortgage : Wis. 3540,3167 ; Minn. 81,34; 1883,25; Dak. C. Civ. P. G07.' Or a judgment creditor : Dak. And upon so doing, he will be subrogated to the rights of the prior mortgagee : Wis. (B) So, if the mortgagor and his privies do not redeem, the senior creditor may redeem on the same terms, within five days after the expiration of the year allowed in § 1943 ; and subsequent creditors have each five days thereafter in order successively ; but any such creditor must have filed a notice of such intention within the year : Minn." 81,16. See also in Part IV. Note. — " Applies to foreclosures under a power only (§ 1924). § 1946. Final Decree of foreclosure is made upon the expiration of the period above limited for redemption : Minn. 81,36. § 1947. Mortgagee in Possession. If the possession of the property is given to tho mortgagee, the mortgagor may redeem at any time within ten years from the last recognition by the mortgagee of such right of redemption : Ga. ^964 , Miss. 2666. § 1948. Fraud. When a mortgage is proved to bo fraudulent in whole or in part, an innocent assignee of the mortgagor for value may file his bill within the time of redemption and without a tender: Me. 90,16. 280 MORTGAGES, TRUST-DEEDS, AND LIENS. Art. 195. Other Liens on Land. § 1950. Vendor's Liens. In several states, the equitable lien of a vendor upon real estate sold, for purciiase-mouey reuiaiiiing unpaid at the time of convey- ance, is abolished : Vt.« 1937 ; lo."''' 1940 ; Va. 115,1 ; W.Va. 1882,64,1 ; Ga. 1997. (So, in several other states, by decision of court.) So, in Kentucky, the vendor has no lieu against bona-fide creditors and purchasers for such consideration unpaid, unless it is stated in the deed what part of the consideration remains unpaid: Ky. 63,1,24. But in others the statutes expressly recognize, and provide a process for the vendor's lien : Tenn. 4306; Cal. 8046 ; Dak. Civ. C. 1801 ; La. D. 2876 ; Ariz. 2141. So, '' the transferee of a bond or note given for the purchase-money of land shall have the same lien on the land for payment thereof as the vendor had before transfer : " Ark.«474 ; Ala. 1879,142. Tlie dissolution of the sale of immovables is summarily awarded, when there is danger that the seller may lose the price and the thing itself. If that danger does not exist, the judge may grant to the buyer a longer or shorter time, according to circumstances, provided such term exceed not six months. This term being expired without the buyer's yet having paid, the judge shall cancel the sale. If, at the time of the sale of immovables, it has been stipulated that, for want of payment of the price within the term agreed on, the sale should be of right dissolved, the buyer may, nevertheless, make payment after the expiration of the term, as long as he has not been placed in a state of default, by a judicial demand; but after that demand, the judge can grant him uo delay : La. 2562-3. See also § 1956. Notes. — « "Except such lien as is created and evidenced by deed, executed, acknowledged, and recorded like deeds of real estate." ^ But it seems tlie vendor has a lien as against the vendee in all cases. ■= Such lieu must appear from the face of the deed or conveyance. § 1951. Nature of the Lien. In California, one who sells real property has a vendor's lien thereon, independent of possession, for so much of the price as remains unpaid and unse- cured otherwise than by the personal obligation of the buyer : Cal. 8046 ; Dak. Civ. C. 1801. When a buyer of real property gives to the seller a written contract for payment of all or part of the price, an absolute transfer of such contract by the seller waives his lien to the extent of the sum payable under the contract ; but a transfer of such contract iu trust to pay debts and return the surplus is not a waiver of the lien : Cal. 8047 ; Dak. Civ. C. 1802. § 1952. Purchaser's Lien. And one who pays to the owner any part of the price of real i)r()perty, uud(;r an agreement for the sale thereof, has a special lien upon the property independent of possession for such part of the amount paid as he may be entitled to recover back in case of a failure of consideration : Cal. 8050; Dak. Civ. C 1805. § 1953. Effect. The vendor's and purchaser's liens are valid against every one claiming under tlic debtor, except a purchaser or incumbrancer in good faith and for value : Cal. 8048 ; Dak. Civ. C. 1803. § 1954. Lien on Crops. (See also Art. 203.) A person making advances to a farmer may (if an agreement to that effect be recorded in the record office of deeds) have a lien on the crops of that year, to the preference of all other liens, existing at the time or subsequent :« Va. 115,12 ; N.C.« 1799 ; Ala." 3286-7 ; Fla.« 143,40. Except rent of land on which the crop is made : N.C. 1806 ; Ala. ; and landlord's advances to make such crop : Ala. ; and laborers' liens : Fla. It seems only necessary that the agreement for the lien should be in writing, and the person so making advances of money, materials, or services will have the lien as above : Tenn. 4284 ; S.C. 2397 ; Ga. 1978. For laborers, see in Part IlL For land- lords, see §§ 2034,2035. In Georgia, these are declared " superior in rank to other liens, except liens for taxes, the general and special liena of laborers, and the special liens of landlords, to which they are in- OTHER LIENS ON LAND. 281 ferior, and shall, as between themselves and other liens not herein excepted, rank accordiug to date." They are assignable by vvi-iting : Ga. In Virginia, this lien does not atfect the right of landlords to a share of the rents or to dis- tress, nor liens existing at the time of the agreement, such as are required to be, and are, recorded, nor the right of the party to whom the advances are made, to claim the part of the crops exempt by law from levy or distress for rent : Va. ib. 14. In Mississippi, every employer has a lien on the share of his employee in any crop made under such employment for all advances of money, and for the fair market value of all things advanced by him: Miss. 1360; without any writing or recording : Miss. 1361. Debts due for necessary supplies furnished to any farm or plantation are a lien upon the crops : La. D. 2873. So, money actually advanced and used to purchase necessary sup- plies or in payment of necessary expenses of any farm or plantation is a lieu on the crops : La. In Kansas, any person or corporation fin-nishing water for the irrigation of land under con- tract with the owner, his agent, etc., has a lieu upon the crop for such contract price : Kan. 1885,133. § 1955. Liens for Improvements. In Connecticut, any person having a remainder in real estate in which a life interest has been created by devise, who pays for necessary repairs or improvements upon such real estate, has a lien upon it therefor : Ct. 18,7.14. And upon the death of a married woman intestate, leaving estate in which the husband. has no curtesy, but upon which he has during coverture with her assent or for their mutual benefit made repairs or improvements, he has a lien which he may enforce by petition in court within sixty days after the grant of administration on his wife's estate : Ct. 18,7,15-16. § 1956. Louisiana Civil Lavr. Creditors who have a privilege on immovables are — 1. The vendor on the estate by him sold, for the payment of the price or so much of it as is unpaid, whether it was sold on or without a credit. 2. Architects, undertakers, bricklayers, painters, master-builders, contractors, sub-con- tractors, journeymen, laborers, cartmen, and other workmen employed in constructing, rebuild- ing, or repairing houses, buildings, or making other works. 3. Those who have supplied the owner, or other person employed by the owner, his agent or sub-contractor, with materials of any kind for the construction or repair of an edifice or other work, when such materials have been used in the erection or repair of such houses or other works. The above-named parties shall have a lien and privilege upon the building, improvement, or other work erected, and upon the lot of ground, not exceeding one acre, upon which the building, improvement, or other work shall be erected ; provided that such lot of ground be- longs to the person having such building, improvement, or other work, erected ; and if such building, improvement, or other work is caused to be erected by a lessee of the lot of ground, in that case the privilege shall exist only against the lease, and shall not aifect the owner. 4. Those who have worked by the job in the manner directed by the law, or by the regula- tions of the police, in making or repairing the levees, liridges, ditches, and roads of a proprietor, on the land over which levees, bridges, and roads have been made or repaired. The privilege granted to the vendor on the immovable sold by him extends to the beasts and agricultural implements attached to the estate, and which made part of the sale. If there are several successive sales, on which the price is due wholly or in part, the first venilor is preferred to the second, the second to the third, and so thi'oughout : La. 3249-3251. How Privileges are Preserved and Recorded. The vendor of an innnovable only preserves his privilege on the object when he has caused to be duly recorded at the office for recording mortgages his act of sale, in the manner directed hereafter, whatever may be the amount due to him on the sale : La. 3271. Architects, undertakers, bricklayers, painters, master-builders, contractors, sub-contractors, journeymen, laborers, cartmen, and other worlcmen employed in constructing, rebuilding, or repairing houses, buildings, or making other works ; those who have supplied the owner, or other person employed by the owner or his agent or sub-eontractor, with materials of any kind for the construction or repair of any edifice or other works; those who have contracted, in the manner provided by the police regulations, to make or put iu repair the levees, bridges, 282 MORTGAGES, TRUST-DEEDS, AND LIENS. canals, and roads of a proprietor, preserve their privileges only in so far as they have recorded with the register of privileges in the parish where the property is situated the act containing the bargains they have made, or a detailed statement of the amount due attested under the oath of the party doing or having the work done, or acknowledgment of what is due to them by the debtor : La. 3272 ; D. 2877. These privileges are concurrent. The privileges enumerated in the last two paragraphs are valid against third persons from the date of the recording of the act or evidence of indebtedness : La. 3273 ; D. 2878. N If there was a written contract. '^ Only in the case of wharves, machines, and bridges, p If no written contract. ' As to persons other tliau contractors or sub-contractors. *■ In the case of a lien for re- pairs. For other notes, see § 1962. § 1969. Effect. Such record is notice to all the world ; and the lien thereupon takes etibct as against purchasers for value: Mich. 8379 ; Kv. 70,14 ; La. 2878. So, in others, a lien is not valid as to purchasers or incumbrancers in good faith until re- corded: lo. 2133; Miss. 1378; Mica. 18d5,21G,2. Notice of such record must further be given to the owner of the property : Va. 115,4. § 1970. Rights and Duties of the Owner. In cases where the contract on which a lien exists was not made with the owner, the owner may " retain the sum due on it and pay the original contractor only the difference : N.H." 139,18 ; N. Y."-'-'''^'*' '■"•■" 1865,778,18; 1864,366,2 ; 1880,143,3; 486,2; 1882,410,1808; N.J." ib. 3 ; Pa. Mechanics' Liens, 35 ; 0." 3193-4,3201,3204 ; Ind.« 1883,115,9; 111." 82,34 ; Io.« 1934 : Kan. 80,631 ; Neb." 1885,62,2 ; Md.« 67,6,13 ; Del. V. 16,145,1 ; Va. 115,6 and 8 ; W.Va. 1882,64,5 ; KC." 1802 ; Ky.° 70,5 ; Tenn." 2746 ; Mo. 3191 ; Ark." 4405 ; Tex." 3176 ; Cal.« 11193 ; 1885,152 ; Ore. ib. 11 ; Nev. ib. 10 ; Col.* 2145 ; Wash. 1966 ; Dak." 825 ; C. Civ. P. 658 and 660 ; Ida." Civ. C. 816 ; Mon. G. L. 823 ; Wy. p. 460, § 2 ; 1877, p. 81, § 19 ; Uta. C. Civ. P. 1067 ; Ga" 1979 ; Ala." 3457 ; Miss." 1381 ; La." 2879 ; KM. 1530 ; Ariz." 1885,93,6 ; Mich." 1885,216,3; Wis." 1885,312. But in others, the owner is allowed payments made in good faith to the original contractor before notice of subordinate liens : Ct. 18,7,12 ; 111. ; Ya. 11.5,5 ; 1884,456; Ark. 4075. But in others, he cannot pay except at his o^vn risk, until the time (§ 1967) for notice has expired: Kan., Neb. And the contractor cannot sue during such time: Kan., Neb. So, in Arkansas, he is required to reserve for ten days after completion one third of the contract price to meet the claims of sub-contractors, etc. : Ark. 1885,57,1. So, no payment made to the contractor for the purpose of avoiding anticipated sub-contrac- tor's liens will be valid : Col. 2159. And in others, if the head contractor is paid in advance, by collusion, the owner ia liable to sub-contractors, laborei'S, etc., to the extent of such payment: N.Y.*^ 1854, 402,3; 1802,478,1; 1805,778,3; 0. 3204 ; 111.82,46; Cal. 1184 ; 1885,152 ; La. D. 2884. So, in California, the owner is forbidden to pay in advance, but must pay by instalments as the work progresses ; and at least twenty-five per cent of the contract price must be payable thirty-five days after completion of the work : Cal. So, no payment made the principal con- tractor before thirty days from the completion of the building is valid as against sub-contractors, etc. : Ore. 1885, p. 13, § 10. The owner may be sued by the sub-contractor, and judgment recovered to the extent of any balance due the head contractor at any time : Wy. p 460, $ 4. If sub-contractors get judgment against the owner, he may recover back the amount, with costs, from the principal contractor : N.M. 1530 ; Ariz. ib. 10. The owner may require from the principal contractor a sworn statement of all sub-contractors or other persons in his employ, and their wages, contracts, and how much is due to them : 111. 82,35 ; Ala. 3458 ; Fla. ib.2. NoTF.s. — " He is required to do so after receiving notice (§§ 1965,1967) in the noted states, or * (in cities, only) after record made according to § 1968. For other notes, see § 1962. § 1971. Amount of the Lien. The lien of all persons claiming can in no case attach for a greater amount (1) than the price the owner agreed to pay to the MECHANICS' LIENS. 289 head contractor for the buiWing and appurtenances : Mass. 191,2 ; Ct. 18,7,12 ; N.IV'"-' 1854,402,2 ; 1862,478,1; 1865,778,2; 1880,143,1; 1882,410,1809 ; 111. 82,29 ; Mich. 8377 ; Wis. 3315 ; lo. 2134 ; Kan. 80,631 ; W.Va. 1882,64,2 ; Tenn. 2748 ; Ark. 4424 ; Tex. 3179 ; 1885,66 ; Cal. 1885,152,1 ; Nev. 1875, 64,10 ; Col. 2146 ; Wash. 1966 ; Dak. ; Ida. Civ. C. 815 ; Uta. C. Civ. P. 1057 ; Ariz. 1885,93,10. So, (2) the lien only applies to the amount to which the owner (at the time of the record under § 19G8 : X.Y.) is indebted to the principal contractor at the time of service or notice (§§ 1907,1968), or may so become indebted thereafter: N.Y.'^ 1875,379,1 ; 0. 3201 ; 111. 82,33; Mich. 8379; Wis.; N.C. 1801; Ky. 70,5; Dak. C. Civ. P. G58 ; Ga. 1979 ; Ala. 3449 ; La. D. 2882 ; D.C. 709. (3) The owner will only he liahle fur the amount specified in the notice (H 1966-7) : Ind. 1833,115,3 ; Va. ; Mon. G. L. 823. (4) He is liable to the value of the improvement : Ark. 4405. (5) To the value of the labor and materials : N.Y. ; " Ind. 1883,115,1 ; Cal. 11183, Amt. ; Ore. ih. 1 ; Col. 2131 ; Fla. ih. 1. Notes. — See § 1962. § 1972. Rights and Duties of the Head Contractor. The owner is, in a few states, required to give a copy of the account-notice (§ 1967) to the principal contractor owing the money : 0. 3199; Tex. 3178; Wy. p. 460, § 3; La. D. 2880. Who may dispute the claim, and if so, the owner must withhold the amount until its determination : 0. ; Mo. 3191 ; Tex. 3179 ; Wy. ; La. If not disputed, he must pay pro rata : 0. ; or, in others, the owner may pay the sub-contractor whenever it is due : Va. 115,6 ; Tex. ; Wy. ; La. The owner may set off against such contractor moneys paid to sub-contractors under §§ 1970,1972 : Kan. 80,634 ; Neb. 1885,62,2 ; Va. ; Tex. 1885,66 ; Cal. 11193 ; Ore. ib. 11 ; Nev. ; Col. 2146 ; Wash. 1966 ; Ida. Civ. C. 825 ; Wy. 1877, p. 81, § 19 ; Uta. C. Civ. P. 1067 ; La. D. 2882 ; KM. 1530 ; D.C. 710. But no set-off against the contractor can be availed of as against sub-contractors : CaL 1885,152,2. The head contractor must defend an action brought on the lien of a sub-contractor at his own expense : Kan. ; Mo. ; Tex. ; Cal. ; Ore. ih. 11 ; Nev. ib. 10 ; Wash. ; Ida. ; Wy. 1877, p. 81, § 19 ; Uta. ; Ala. 3459 ; N.M. If the judgment and costs recovered in all such actions upon liens for which the head contractor was originally liable exceed the amount due by the owner to the head contractor, he may recover back from such contractor the excess : Tex. ; Cal. ; Ore. ; ^Qv. ; Wash. ; Wy. ; Ala. ; N.M. ; Ariz. ib. 10. § 1973. Subject Property, (a) In most states, tlie lien attaches to the building or other thing erected and (1) the interest of the owner of the building in the land on which it stands : KH. 139,11 ; Mass. 199,1 ; Me. 91,30 ; Pt.i. 177,2-3 ; N.Y.'^ 1882,410,1807 ; 1875,379,3 ; 1862,478,1 ; 1865,778,1 ; 1880, 143,1 ; 486,1 ; N.J. Mechanics' Liens, 4 ; Pa. Mechanics' Zicvs, 18 and 36 ; 0. 3184 ; Ind. 1883,115,1 ; Mich. 8377 ; Wis. 3314 ; lo. 2131 ; Minn. 90,1 ; Md. 67,6,9 ; Del V. 16,116,1 ; Va. 115,2 and 9 ; Mo. 3172-3 ; Cal. 11185 ; Ore. 1885, p. 13, § 2 ; Nev. 1875,64,3 ; Wash. 1959 ; Dak. C. Civ. P. 665 ; Ida. Civ. C. 818 ; Mon. G. L. 827 ; Uta. C. Civ. P. 1060 : S.C.« 2350,2381 ; Ala. 3440,3441 ; Fla. ib. 1 ; 143,17 ; Ariz. 1479. (2) To the building and the land, by whomever it is owned : Vt. 1983 ; Ct. 18, 19 290 MORTGAGES, TRUST-DEEDS, AND LIENS. 7,9 ; KY.* 1864,366,1 ; KJ.* Mechanics' Liens, 8 ; Ind.* 1883,115,2 ; Neb. 1885, 62,1 ; AV.Va. 1882,64,2 ; N.C. 1781 ; Tenn. 2745 ; Tex. 3164 ; Miss. 1378. (3) To the building, and the interest of the owner of the land or other person making the contract in the land : 111. 82,2 ; Kan. 80,630 ; Ky. 70,1 ; Ark. 4402 ; Col. 2131 ; Dak. C. Civ. P. 655 ; Wy. 1877, p. 77, §§ 1-2 ; KM. 1522 ; Ariz. 1885,93,3. (B) The extent of land covered by the lien is, (1) in many states, the land on which the building stands, with tne lot or curtilage immediately about it and necessary for its use : N.H. ; Me. ; Vt. ; N.Y. ; IST.J. Mechaiiics Liens, 1 and 10 ; Pa. Mechanics' Uens, 2 ; Neb. 1885,62,1 ; Md. 67,4-6 ; Va. 115,1-3; N.C; Tex. 3170 ; Cal. ; Ore. ; Nev. ; Col. 2148 ; Wash. ; Dak. ; Ida. ; Uta. ; Miss. ; Fla. 143,16 ; N.M. ; Ariz. ; D.C. 692. (2) In otlier states, the lien covers (or may cover) all the land held by the owner of the building in one piece : R.I. 177,20 ; 111. 82,1 ; lo. ; Kan. ; Tenn. 2739 ; Dak. ; Ala. So, all the lot back, and of the width of the building : D.C. 704. (3) So, all such land not exceeding, in the country, (a) one hundred and sixty acres : Mich. ; (jS) fifty acres: Tex. 3169; (y) forty acres: Wis., Minn.; (8) one acre: Mo., Mon., Wy., Ala. ; (e) two acres : Ark. 4409 ; (0 half an acre : N.J. And not exceeding, in a town, (a) the lot on which the building stands : N.J. Mechanics^ Liens, 16: O. ; 111. ; Mich. ; Mo. ; Mon. ; Wy. ; Ala.; (/S) one acre: Wis., Minn. Tlie owner may define in writing the boundaries of the lot, and record them in the court before the work is commenced : Md. 67,6,5. Notes. — « "Whether the estate be in fee, for life, years, or any other estate or right of redemp- tion." * When done by his contract or consent, according to § 1964. See § 1975. For other notes, see § 1962. § 1974. Estate of Owner, (a) The lien attaches to the estate of a lessee making improvements on leased land : R.I. 177,3 ; N.Y. 1854,402,1 ; 1882, 410,1807 ; Pa. 1879,198,2 ; Ind. 1883,115,2 ; Mich. 8377 ; lo. ; Md. 67,6,9 ; Mo. 3175 ; Ore. 1885, p. 13, § 2 ; Dak. C. Civ. P. 665 ; Mon. ; Wy. 1877, p. 78, § 4 ; Ala. 3443 ; Miss. 1380. And if the lessee is afterwards evicted, the forfeiture of the lease does not destroy the lien upon the building: lo. 2131 ; Ore. ; Dak. ; Wy. ; Ala. ; Mich. 1885,216,1. But it does not attach to the lessor's estate, except by consent, etc., as in §§ 1964-5 : R.I., N.J., Md., Del., Miss. If the owner's interest is by executory contract which is afterwards rescinded or set aside, the lien follows the property into the hands of any person to whoin it may come or in whom it may remain, to the extent the actual value is enhanced by such improvements : Ky. 70,2 ; Mo. ; Mon. G. L. 828. If the owner or claimant be evicted by judgment, and is entitled to compensation for improve- ments, the person entitled to a lion under this chapter is subrogated to such rights to the satis- faction of his debt and costs : Ky. 70,3. (B) The lien may attach to property held as homestead : Vt. 1986. See also in Part IV. But in Texas, in such case, to fix a lien, there must be a written contract, signed by hus- band and wife, and acknowledged by her as in case of sale of homestead, recorded in the county clerk's office in the county where the improvements are being made or the land situ- ated : Tex. 3174. This lien inures to the benefit of all mechanics, laborers, and material-men who have furnished labor or materials for a homestead : Tex. 3175. The lien attaches to water rights : Col. 2139 ; rights of way : Col. ; foundries and cor- poratifin privileges : Col. (C) In a few states, the e.«tate of a married woman is only subject to the lien when she joins in the contract: Me. 91,30 ; Vt. 1987 ; Tenn. 2741. See also '^ 1963-4. But in New Jersey, it is so subject unless she file written notice in the county clerk's office that she does not consent to such erection or repairs : N.J. Mechanics^ Liens, 9. And in others, it is subject if the contract with the husband be with her knowledge and con- MECHANICS' LIENS. 291 Rcnt : Mich. 8377 ; Minn. 1883,43. But in others, any person, including all cestuis que trustent, for whose immediate use and benefit auj' building or improvement shall be made is included in the word "owner" in the principal provision: lo. 2136; Mo. 3192; Dak. C. Civ. P. G69 ; Mon. Gr. L. 840 ; Wy. 1877, p. 81, ^ 20 ; not excepting married women, as to their separate property : Ark. 4419 ; Ala. 34G0. So, in Maryland, waittcn notice must be given a married woman, if she is owner, and the contract was made with her husband : Md. 67,6,10. The lien attaches to the estate of minors above eighteen : Mon., Wy. ; to the estate of any miiKir making the contract: Me. ; or whose guardian makes it : Dak. (D) If the owner of the building has an estate for life, or less than a fee, or if the estate is subject to a mortgage or other incumbrance, the lien only binds the estate of such owner (com- pare § 1973, A) : Mass. 191,36. (E) The lien attaches to the estate of a vendee in possession under contract of sale : N.Y., Mich. (F) Any person having a transferable interest in the land is deemed the " owner : " Col. 2131. § 1975. Preventing Lien. In several states, the lien may be prevented, as to labor or materials not already actually furnished, if the owner is not the person with whom the contract for labor or materials was made, (1) by his giving written notice to the person claiming the lien: Mass. 191,4; Me. 91,31; S.C. 2353; (2) or by his posting a notice to that effect on the premises: Cal. 11192 ; Ore. 1885, p. 13, § 4; Nev. ih. 9 ; Wash. 1965 ; N.M. 1529; (3) or by his filing bond to pay judgments and costs on such liens: Mass. 191,42; Pa. Mechanics^ Liens, Q2 \ Ind. 1883, 115,11 ; lo. 2134; Fla. 143,9; D.C. 708 ; (4) or paying the amount claimed into court: N.C. 1793. Such notice must be given by the owner (1) within three days after he has knowledge that the lien is claimed: Cal., Ore., Nev., N.M. ; (2) within ten days thereafter: Wash. The lien of sub-contractors, etc., may be prevented (1) by the head contractor's giv- ing bond with surety for their use, and filing it in court : 111. 82,42 ; lo. 2134 ; Minn. 90,3—4 ; or by the owner's filing a similar bond : lo. The owner must join in such bond: 111., Minn. In other states, the owner may offer to pay money or file a bond or security, and if the lien- holder do not accept it in discharge of the hen, and fail afterwards to get a more favorable judgment, he is liable for all costs incurred by the owner from the time of the offer : N.Y.*^' 1875,379,13; 1880,143,13. Notes.— See § 1962. § 1976. Limitation for Suit. Commonly suit must be bronght upon the lien within a certain period, or the lien wmII be lost. Thus, in a few states, (1) within ninety days from the time of ceasing to labor or furnish materials : N.H. 139,12 ; Mass. 191,9 ; Me. 91,34 ; 111.* 82,47 ; (2) within a year thereafter : N.J. Mechanics' Liens, 13 ; Kan. 80,633 ; Tenn. 2745 ; Fla. 143,5 ; D.C. 696 ; (.3) within ninety days after the time of making record (§ 1968): N.Y.'* 1875,379,8; Pa." 1879,198,4; Mo. 3187; Cal. 11190; Dak. 823 ; Ida. Civ. C. 823 ; Mon.* G. L. 839 ; Uta. C. Civ. P. 1065 ; Ala. 3454 ; Ariz. 188-5, 93,9 ; (4) within sixty days thereafter : Mich. 8381 ; Wy. 1877, p. 80, § 15 ; (5) with- in six months thereafter: Va. 115,2 and 7 ; W.Va. 1882,64,11 ; N.C. 1790 ; Ark.* 4418 ; Ore. 1885, p. 13, § 7; Nev. ih. 8 ; Col. 2151 ; Ariz. 1481 ; (6) within eight months: Wash. 1964; (7) within nine months : Ark. ; " (8) within one year : N.Y. i854,402,20 ; 1862,478,8; 1880,143,8; 486,5; 1882,410,1812; Minn.* 90,6 ; Ky. 1882,17 ; Mon. ;« N.M. 1527; (9) two years: 0. 3185; Minn.«90,7; Neb. 1885,62,3; (10) five years: N.Y." 1865,778,19 ; Pa. ; Neb. 57; Md. 67,6,38 ; (11) within ninety days from the time the last payment was due: Vt. 1984; (12) within six months from such time: 111." 82,28 ; Miss. 1384; (13) within one year from such time: Ind. 1883,115,6 ; Wis. 3318, Amt. ; Ida. ih. 6 ; 1876-7. p. 56 ; Ga. 1980 ; (14) within six months from ceasing 292 MORTGAGES, TRUST-DEEDS, AND LIENS. labor, etc. : Ore. 1874,104,16 ; S.C. 2356 ; (15) within two years : Ct. 1881,148,1 ; Miun. 90,7 ; (16) within twenty days before the term of coui't next after filing (§ 1968) : R.I. 177,9. But if credit has been given, the lien lasts until (1) eight months from the expiration of the credit : Wash.*^ 1964 ; (2) one year therefrom : Ind., Kan., Fla. ; <^ (3) ninety days therefrom : Cal.,<^ Nev.,'' Dak.,"* Ida.,"^ Ariz., D.C ; (4) thirty days therefrom: N.C. ; (5) six months therefrom : Va.,^ Ore.,^ N.M.,<^ Ariz.^ A lien may be revived, in a few states, at the expiration of the above-mentioned period (1) by filing an affidavit or agreement, for one year longer : N.J., Wis.; (2) by scire facias: Pa., lo., Md. (five years). Notes. — ° As to principal contractors. * As to sub-contractors only. <^ But in no case over two years from the completion of the work ; or, '^ from such time of giving credit. « In the case of a lieu claimed for repairs. See also § 1962. § 1977. "When the Work must be Performed. When the contract is expressed, no lien shall be created under this act, if the time stipulated for the completion of the work or fur- uisliiug the materials is beyond three years from the commencement thereof, or the time of payment beyond one year from the time stipulated for the completion thereof; if under an im- plifid contract, no lien unless work done, etc., witliin one year from the commencement of the work or delivery of the materials : 111. 82,3. And if the work be suspended by the default or decease of its owner, without consent of the contracttjr, sub- contractor, or material-man, he, or they, or any of them, may proceed in accord- ance with the original plan or contract, and, on completion thereof, have either or all the rem- edies provided by this chapter : 0. 3205 ; Minn. 90,9 ; Neb. 1885,62,5. But only so far as to enclose the building and to prevent waste : Minn., Neb. § 1978. Assignment of Liens. In many states, the lien is assignable by writing : Wis. 3316; lo. 2139; Ark. 4423; ^ev. ib. 17; Ga. 1996; Ariz. 1885,93,18. And it follows the assignment of the debt : lo. The lien operates only in favor of the mechanic or person who furnishes materials, and does not pass to any person to whom the debt is transferred without notice of the lien : Tenu. 2749. The journeyman's lien shall not operate where the debt is transferred by the undertaker to any person without notice thereof, but to the extent of the debt, if any, not so assigned : Tenn. 2750. Notice in wi'iting of assignment must be served on the owner within fifteen days thereafter ; and aU payments made by him before notice are good in discharge of his original debt : Wis. Assignment of Estate. If the owner of the building or person for whom the work is done dies or conveys away his estate or interest, the lien may be enforced against his heirs or assigns: Mass. 191,37. § 1979. Special Liens. In Ohio, any person who perfonns labor or furnishes material for constructing, altering, or repairing any street, road, sidewalk, way, drain, ditch, or sewer, by virtue of a private contract between him and the owner of lands abutting thereon, or his authorized agent, has a lien on the lands of such owner ; the statement must be filed in the recorder's office within four months of the labor, and action may be brought within a year from the date of the first item : 0. 3186-7. Such liens are concurrent, and to be paid pro rata : 0. 3188. If a person orders or contracts for machinery, not having an interest in the building suffi- cient fr the receipt of such papers, give tlie owner written notice that he intends to dispute the claim, or if, in ten days after giving such notice, lie shall refuse or neglect to have the matter adjusted as aforesaid, he shall be considered as assenting to the demand, and the owner shall pay the same when it becomes due. If any such contractor shall dispute the claim of his journeyman or other person for work or labor perfonned as aforesaid, and if the matter cannot be adjusted amicably between themselves, it shall be submitted, on the agreemetit of both parties, to the arbitrament of three disinterested persons, — one to be chosen by each of the parties, and one by the two thus chosen; the de- cision, in writing, of such three persons, or any two of them, shall be final and conclusive in the case submitted. Whenever the amount due shall be adjusted and ascertained as above provided, if the con- tractor shall not, within ton days after it is so adjusted and ascertained, pay the sum due to his creditor with the costs incurred, the owner shall pay the same out of the funds as provided ; and the amount due may be recovered from the owner by the creditor of the contractor, and the creditor shall be entitled to the same privileges as the contractor to whose rights the creditor CREATION OF TENANCY. 297 shall have been subrogated, to the extent in value of any balance due by the owner to his con- tractor under the contract with him at the time of the notice first given as aforesaid, or subse- quently accruing to such contractor under the same, if such amount shall be less than the sum due from the contractor to his creditor. All the foregoing provisions shall apply to the person furnishing materials of any kind to be used in the performance of any work or construction of any building, as well as the work done and performed towards such building, by any moclianic or workman ; and the pi'oceed- ings shall be had on the account duly attested of such person furnishing materials, and the same liabilities incurred by, and enforced against, the contractor or owner of such building, or other person, as those provided for work or labor performed. If, by collusion or otherwise, the owner of any building erected by contract as aforesaid shall pay to his contractor any money in advance of the sum due on the contract, and if the amount still due the contractor after such payment has been made shall be insufficient to satisfy the demand made for work and labor done and performed, or materials furnished, the owner shall be liable to the amount that would have been due at the time of his I'eceiviug the account of such work, in the same manner as if no payment had been made. Workmen and persons furnishing materials who have contracted with the undertaker have no action against the owner who has paid him. If the undertaker be not paid, they may cause the moneys due him to be seized, and they are of right subrogated to his privilege. The payments which the proprietor may have made in anticipation to the undertaker are considered, with regard to workmen and to those who furnish materials, as not having been made, and do not prevent them from exercising the right granted them by the preceding article. No agreement or undertaking for work exceeding five hundred dollars which has not been reduced to writing and registered with the recorder of mortgages, shall enjoy the privilege above granted. When the agreement does not exceed five hundred dollars, it is not required to be reduced to writing, but the statement of the claim must be recorded in the manner required by law to preserve the privilege. Workmen employed in the construction or repair of ships and boats enjoy the privilege established above without being bound to reduce their contracts to writing, whatever may be their amount, provided the statement of the claim is recorded in the manner required by law ; but this privilege ceases if they have allowed the ship or boat to depart without exercising their right: La. 2756-2777. CHAPTER IX. — LANDLORD AND TENANT. § 2000. Note to Chapter. See also Ejectment, Forcible Entry, etc., in Part IV. Art. 200. Creation of Tenancy. § 2001. Definitions. Any contract or consent pursuant to which a tenant shall enter into or continue in possession of lauds, etc., under an agreement to pay rent, shall be a demise : Del. 120,1. The letting of part of a room is, in two states, forbidden : Cal. 6950 ; Dak. Civ. C. 1122. In Georgia, a distinction is made between the relation of landlord and tenant, and the rela- tion of lessor and his lessee for years. Thus, when the owner of real estate grants to another simply the right to possess and enjoy the use of such real estate, either for a fixed time or at the will of the grantor, and the tenants accept the grant, the relation of landlord and tenant exists between them ; no estate passes out of the landlord, and the tenant has only a usufruct, which he cannot convey without the landlord's consent and which is not subject to levy or sale : Ga. 2279. And all renting or leasing of real estate for a period of time less than five years is held to convey only the right to possession and enjoyment, the usufruct, not the estate, unless the con- trary be expressed in the contract : Ga. § 2002. Tenancy without Contract. Generally every tenancy or occupancy of real estate, without special agreement to the contrary, is deemed, (a) in 298 LANDLORD AND TENANT. a few states, a tenancy at will : KH. 250,5 ; lo. 2014 ; Kan. 55,1 ; Col. 1885, p. 226, § 6. So, in many states, where there is no written lease ; see §§ 2003,2021. But such tenancy must be with the owner's knowledge or consent; otherwise the occupant will be a trespasser : Ic, Kan. (B) It is deemed a tenancy at sufferance : D.C. 2680. (C) In others, it is deemed a tenancy from year to year : E.I. 232,5 ; lud. 5208; Del. 101,15; Uta. 1205. So, in New Yorli City, it lasts uutil the first of May following, and rent is payable on the usual quarter days: N.Y. 2,1,4,1. (D) And in others, it is deemed to be for one calendar year : Del. 120,2 ; Cal." 6943; Dak.* Civ. C. 1116; Ga. 2290; S.C. 1812. " Except as to houses or lots usually let for a less time : " Del., Cal." In one, all parol leases are understood to be for one year, unless stipulated to be for a shorter tenn : S.C. 1812. See also the Statute of Frauds, Art. 414. But it is deemed from month to month, if the letting be at a monthly rate: R.I. 1882,317. (E) And in others still, it is from term to term : Cal.'' 6944 ; Dak.*^ 1117. And in detail, (1) all unwritten contracts or agreements for leasing houses, shops, or tene- ments in towns create tenancies from month to month : Mo. 3078 ; Uta. (2) So, in two others, unless the rent is made payable at other periods : Cal., Dak. Notes. — "In the absence of a local usage. * Except as to lodgings or dwelling-bouses. For these, see § 2005. '^ As to lodgings or dwelling-houses only. § 2003. Tenancy at Will. In several states, tenancy without contract creates an estate at will, § 2002, A. And by the provisions of the Statute of Frauds, all estates created by parol for a term over a year (or a few years) are made estates at will only. See Art. 414 ; and also §§ 1471,1551. Otherwise, in a few states, an estate at will can be created only by express words : Ind. 5208 ; Ga. 2290 ; D.C. 680. § 2004. Tenancy by Sufferance. (A) " When a tenant holds over his term" (Stim- fion's " Law Glossary "). Tins detinitiou expresses the law in two states : Ind. 5213 ; Wy. 72,1. (B) But in Washington Territory, " where a person obtains possession without consent of the owner, he is deemed a tenant by sufferance : " Wash. 2057. So, in many states, tenancy by sufferance is confounded with tenancy at will. § 2005. Tenancy from Term to Term. (A) In Wyoming, all tenancies from term to tenn are abolished : Wy. 72,1-2. So, in tw^o territories, all tenancies from year to year: Wash. 2053 ; Wy. Thus, in detail, no holding over by any lessee after the exjiiration of his term shall be evidence of any agreement for a further lease : Ct. 18,6,1,16 ; Wy. 72,1. A parol lease reserv- ing a montlily rent creates a tenancy for one month only (not from month to month) : Ct. Except, that tenancies fr(jm year to year may be created by express written contract : Wash. (B) But in several states, expressly, tenancies from year to year exist : Ind. 5208 ; Md. 07,7,6 ; Ky. 66,4,1 ; Cal ; Dak. ; Uta. C. Civ. P. 1035. Thus, in detail, (1) if there be a demise for a year or terra of years, and the required notice (Art. 205) is not given by either party before the end of the term, a tenancy from year to year is created : Del. 120,4. (2) So, in otlicrs, if the tenant in such case hold over, he may be considered a tenant from year to year, according to the terms of the lease: Wis. 2187; Kan. 55,2. But only at the option of the landlord : Wis. (3) All tenancies without special contract are doomed from year to year (§ 2002, C). (4) If a tenant for a year ox more hold over ninety days after the end of his term : Ky. : (5) sixty days thoroafter: Uta. (C) And in Maryland, expressly, tenancies from term to term exist. And in many states, tenancies so called at will are in effect held or treated as if from term to term. See $$ 2051,2052. And in others, tenancy without contract is held from terra to CREATION OF TENANCY. 299 tenn. See $ 2002. Thus, in detail, (1) when rent is reserved payable at intervals of three months or less, the tenant is deemed to hold froni one period to another equal to the interval between the days of payment, unless there is an express contract to the contrary : Kan. 55,3. (2) When premises are rented for an indefinite time, with monthly or other periodic rent reserved, such tenancy shall be construed as from month to month, or period to period on which rent is payable, and shall be terminated by written notice of thirty days or more if the term is longer, preceding the end of any of said mouths or periods, given by either party to the other : Cal. 6944,6946; Wash. 2054; Dak. Civ. C. 1117,1119. (3) And if the lessee remains in possession after the lease has expired, and the lessor accepts rent from him, the parties are presumed to have renewed the lease from year to year, or from term to term if the rent is payable oftener than once a year : Cal. 6945; Dak. Civ. C 1118. So, as to tenancies from term to term of less than a year : Nev. 59. § 2006. Tenancy for Years. (See Art. 134.) § 2007. Tenancy for Life. (See Art. 133.) § 2008. Attornment. Ill most states, the attornment of a tenant to a stranger is absolutely void, and does not affect tlie landlord's possession, unless made (1) with the landlord's consent : N.Y. 2,1,4,3 ; N".J. Landlord and Tenant, 24; Ind. 5216; Wis. 2182; lo. 2013; Kan. 55,14; Del. 120,7; Va. 134,4; W.Va. 113,4 ; Ky. 63,1,16 ; Mo. 3080,3948 ; Cal. 6948 ; Nev. 275 ; Dak. Civ. C. 1121 ; Ida. 1874-5, Conveyances, 49 ; Mon. G. L. 225 ; S.C. 1784 ; Ga. 2283 ; Miss. 1192 ; D.C. 683. (2) Pursuant to, or in consequence of, a judgment or decree : IST.Y., N.J., Ind., Wis., lo., Kan., Del., Va., W.Va., Ky., Mo., Cal, Nev., Dak., Ida., Mon., S.C, Miss. So, in Wisconsin, ** to a purchaser upon a judicial sale who shall have acquired title to the lands by a conveyance thereof after the period of redemption if any has expired." (3) Or after a mortgage has been forfeited, if made to the mortgagee : N.Y., N.J., lo.. Mo. § 2009. Attornment Unnecessary, (a) In most states, a grant of the re- mainder or reversion or otlier conveyance by the landlord is valid without the at- tornment of the tenant: KY. 2,1,2,146 ; N.J. Convetjances, 74; Ind. 5215 ; Kan. 55, 13 ; Del. 120,6 ; Va. 134,3 ; W.Va. 113,3 ; N.C. 1764 ; Ky. 63,1,16 ; Mo. 3947 ; Cal. 6111 ; Nev. 274 ; Dak. Civ. C. 632 ; Ida. 1874-5, Conveyances, 48 ; Mon. G. L. 224 ; Ala. 2177 ; Miss. 1191 ; N.M. 1429. So, in many, a grant of the rent : Del., Va., W.Va., N.C, Ky., Mo., Cal., Nev., Dak., Ida., Mon., Miss., N.M. (b) But in all these cases, a payment of rent made by the tenant, in good faith and without notice of the grant to the grantor, is good as a discharge from the rent so paid, and due : N.Y. ; N.J. ; Ind. ; Kan. ; Del. ; Va. ; W.Va. ; Ky. ; Mo. ; Cal. ; Nev. ; Dak. ; Ida. ; S.C. 1823 ; Ala. ; Miss. ; N.]\I. So, in New York, the tenant is not liable, before notice, to the grantee for breach of condition. And in North Carolina, the tenant is " not prejudiced by any act done by him as holding under his grantor, before notice as above." § 2010. Conveyances of Rents in fee, or devises, with powers of distress or re- entry, pass such powers to the grantee or devisee without express words: Va. 134,3; W.Va. 113,3. The grantee or assignee of the estate or term in land may recover the rent : Va. 134,8 ; W.Va. 113,8 ; Ky. 66,2,7. Rent may be recovered from the lessee or his assignee ; but no assignee is liable for rent accruing before his interest began: Va, 134,9; W.Va. 113,9; Ky. 60,2,8; Mo, 3095, Compare § 1352. 300 LANDLORD AND TENANT. Art. 202. Rent. § 2020. Use and Occupation. See §§ 2002,2021. For form of action, see iu Part IV. § 2021. Tenants at "Will, (a) Where a tenancy at will exists, or where such tenancy is created by an occupation by the tenant without demise, or with parol demise, which is not good as a written lease because not written, not sealed, or not recorded according to law, the tenant is liable, in most states, for a reasonable rent, to be recovered in an action on the case for use and occupation, assumpsit, etc. : Me. 94,10 ; KY. 2,1,4,26 ; N.J. Landlord, etc. 3 ; 111. 80,2 ; Wis. 2196; Del. 120,13 ; Va. 134,7 ; W.Va. 113,7 ; N.C. 1746 ; Ky. 66,2,2 ; Mo. 3081 ; Ark. 4167, 4169 ; S.C. 1813 ; Ala. 2956 ; Miss. 1323 ; Fla. 137,16. So, in others, " the occupant without special contract of any lands shall be liable for rent to any person entitled thereto : " Ind. 5222 ; Kan. 55,20 ; Miss. (b) And in such case, a parol demise or other agreement may be used in evi- dence to fix the amount of such rent : N.Y. ; N. J. ; Wis. ; Del. ; Va. ; W.Va. ; N.C; Ky. ; Mo. 3082 ; Ark. 4168; S.C; Miss.; Fla. When land has been sold under a judgment or decree of court, where the party defendant or his tenant refuses to yield possession, after written demand by the party entitled, he is liable for rent, or a reasonable satisfaction for the use and occupation : 111. 80, L So also, where the premises have been sold under a mortgage or trust-deed, and the mortgagor or his tenant refuses as above : . 111. When there is no usage or contract to the contrary, rents are payable at the termination of the holding, if it does not exceed one year: Cal. 6947; Dak.« Civ. C. 1120. If the holding is by the day, week, month, quarter, or year, rents are payable at the termination of every successive such period : Cal., Dak. In tenancies at will rent is payable at any time upon demand : N.H. 250 5. So, a person who has obtained the possession of real estate under a written or A^erbal con- tract to purchase, when before a deed is given the right to possession is terminated by forfeiture or non-compliance with the agreement (and, in Illinois, possession is wrongfully refused or withheld after a written demand) is liable for rent in the same way : 111. ; Del. 120,14 ; Tenn. 4141 ; Ala. But all payments previously made by such vendee may, in Illinois, be set oif against such rent. Rents of lodgings are payable monthly ; other rents, quarterly : Cal. 6944 ; Dak. Note. — "Of wild or agricultural land only. § 2022. Tenant by Sufferance. In several states, a tenant by sufferance is liable to pay rent : Mass. 121,3 ; 111. 80,1 ; Wash. 2057 ; Ala. 2956. So, probably, in most others. "Reasonulile rent for time of actual occupation :" Mass., Wash. § 2023. Rent by Tenant for Life. In most States, a lessor for life or lives has the same remedy for recovering rent as if the lease were for years : KY. 2,1,4,19 ; N..J. Landlord, dc. 1 ; Ind. 5219 ; III 80,1 ; Wis. 2188 ; Kan. 55,17; Ky. 66,2,19 ; Mo. 3069 ; Ark. 4160 ; Cal. 5824 ; Dak. Civ. C. 262 ; S.C. 1827. He has an action of debt : Del. 120,8. So, a grantor in fee or tail reserving rent : Del. § 2024. Rent due Tenant for Life. In several, if the tenant for life rents land for the year, and dies," or the estate is otherwise terminated during the year, the tenant is entitled to the land for the term of the year (1) upon complying with his contract with the teuant for life : Ga. 22.58; (2) if he shall pay a reasonable rent from the death of the life-tenant: Va. 135,1: W.Va. 78,1 ; Ky. 39,2,29. (3) In South Carolina, the person hiring shall not be dispossessed until the crop of that year is finished, he securing payment of the rent when due: S.C 1807. RENT. 301 The administrators of such tenant may recover rent due at his decease, and may distrain for it : N.J. Distress, 20. See also in Probate Code. Note. — "If he die after March 1 in such year : Ky. § 2025. Rent due Tenant pur Autre Vie. In many states, any person en- titled to any rents dependent on the life of any other person may, notwithstand- ing the death of such other person, have the same remedy by action for arrears unpaid at his death as if such person were alive : N.Y. 2,1,4,20 ; K J. Distress, 18 ; Ind. 5220 ; Wis. 2191 ; lo. 2011 ; Kan. 55,18 ; Ky. 66,2,20 ; Mo. 3067 ; Ark. 4158 ; Cal. 5825 ; Dak. Civ. C. 263 ; Miss. 1328. So, in a few, he may distrain: N.J. Distress, 18; Del. 120,11 ; Ky. § 2026. Rent due the Husband. The rights and remedies of a husband who in right of his wife has any interest in or title to rents in arrear whilst she is alive shall in no wise be aftected by her death : N.J. Distress, 19 ; Ky. 66,2,21 ; Mo. 3068; Ark. 4159. So, in New Jersey, he may still distrain. See also in Division 11. § 2027. Apportionment. (A) In a few states, there is a general provision that all rents, annuities, dividends, or other fixed payments, are apportioned between the laud- lord's representatives and remainder-men, so that, on the death of any person interested in such rents, etc., or the determination of his interest by any other means or con- tingency, he or his executor or administrator is entitled to a proportion of such rents, etc., up to and including the day of his death or other termination of his interest : Mass. 121,8; N.Y."-" 1875,542,1-3; Va." 136,1 and 3; W.Va.« 135,1 and 3; N.C. 1747-8. (b) So, in many states, when a life tenant who has demised any lands shall die, his executor or administrator may recover from the under-tenant the propor- tion of the rent due at his death: Mass. 121,8 ; KY. 2,1,4,22 ; KJ. Landlord, etc. 2 ; Pa. Decedents, 98 ; Ind. 5223 ; Wis. 2193 ; lo. 2011 ; Del. 120,15 ; Va. 135,1 ; W.Va. 78,1 ; N.C. ; Ky.^ 39,2,30 ; Tenn. 3289 ; Mo. 3066 ; Ark. 4157 ; S.C. 1805-6 ; Miss. 1328. Or when the lessor's estate is ended by any other contingency : Del., Va., W.Va., Ky. *(C) In Massachusetts, a similar apportionment of rent is had when an estate at will or a tenancy under lease is determined by surrender, or by notice to quit for non-payment of rent : Mass. (D) Vice versa, in such cases, if the rent has already been paid for the whole period, the tenant, upon such determination, may recover back a part proportional to the remainder of his term: Mass. 121,9. (E) When the holder of a rent purchases part of the land out of which it issues, or a holder of land part of the rent, apportionment is had as if the land or rent had come to him by descent : Va. 130,4; W.Va. 135,4. Notes. — « Unless it is expressly stipulated to the contrary. * Does not apply to sums made pay- able on policies of insurance. <= Unless, in case of a devisee, the will otherwise direct. § 2028. Apportionment among Sub-lessees." (a) In several states, every per- son in possession of land out of which rent is due, whether originally demised in fee or for life or years, is liable for the rent, or proportion of rent, due from the land in his possession, although only a part of what M'as originally demised : Mass. 121,4; NJ. Distress, 22; Mich. 5771; Wis. 2189; Minn. 75,36; Ore. 17,31. Such rent may be recovered by suit, and the principal deed or demise is evidence : Mass. 121,5 ; Mich. 5772 ; Wis. ; Minn. 75,37 ; Ore. 17,32. 302 LANDLORD AND TENANT. This does not deprive landlords of any other legal remedy, or contract remedy : Mich. 5773; Minn. 75,38; Ore. 17,33. (B) lu New Jersey, when premises are sub-let or under-let," the sub-lessee or under-lessee is liable to pay to the lessor the rout which shall accrue after written notice to him for that pur- pose, or which is then unpaid, and the lessor has the same remedies as against the principal lessee, provided the amount of rent so paid shall not exceed the amount due the lessor from the principal lessee. Note. — " See definition Underlease in Stimson's "Law Glossary." §2029. Anticipation of Rent. In one state, ''no payment made in anticipation of rent, for a longer period than twelve months, shall be considered a valid discount against the claims and rights of third persons : " S.C. 1810. § 2030. Interest on Rent. All rents bear legal interest from the time they are due : Ky.GG,2,3; Ga. 2288 ; Fla. 137,17. § 2031. Distress for Rent. Distress for rent has, in several states, been expressly abolished: N.Y. 1846,274; 2,1,4,18; Wis. 2181 ; Minn. 75,39 ; Uta. 1203; D.C. 677. In others, distress is recognized by the statutes as still existing : N.J. Distress, 1 ; Pa. Landlord, etc. 4 ; 111. 80,1^6 ; Md. 67,7,8 ; Deh 120,19 ; Va. 115,14 ; 135,7 ; Ky. 66, 2,1; S.C. 1824,1828; Ga. 2285; Miss. 1302-1310. And it makes no diflfcrence as to the right of distress that security has been given by the tenant: Md. 67,7,17. In most other states, the procedure has practically fallen into disuse. In many states, distress is practically preserved under the law of liens and attach- ments (see §§ 2033-2035 ; also in Part IV.). § 2032. Procedure in Distress. In several, the landlord may distrain for rent be- fore it is due, if the tenant is seeking to remove his goods from the premises : 111. 80,34 ; Ga.2285; Miss. 1305. In others, he may distrain after the term has ended : N.J. Distress, 17; Pa. Land- lord and Tenant, 1 ; Del. 120,21 ; S.C. 1828 ; Miss. 1308. Within two years thereafter only : Del. 120,44. Within five years after the rent is due : Va. 135,19 : within one year after : W.Va. 113,10; 1882,65; S.C. 1824. See Part IV. for other provisions relating to distress. § 2033. Suits for Rent. Any person having rent in arrear or due upon any lease or demise of land or tenements for life, years, or at will, may bring an action for such arrears of rent against the person who ought to have paid the same, his executors or administrators: Va. 134,8; W.Va. 113,8; Mo. 3093; Miss. 1322. Even though the tenant's estate or interest be ended : Va., ^V.Va., Mo. " Nothing contained in the preceding sections shall deprive landlords of any legal remedy for tlie recovery of their rents, whether secured to them by their leases or provided bylaw : " Mass. 121,7; Wis. 2190. The provisions of this article for the recovery of rent by action or distress extend to any rent in arrear, whether of money, or quantity, or shares, or of any other thing certain or that can be rf'duccd to certainty, and whether it be a rent-charge, rent-seek, quit-rent, or otherwise : Del. 120,12. So, in Maryland, when the rent is payable in crops or produce as well as when pay- able in money : Md. 67,7,10. So, in two others, rent " of every kind " may be recovered by distress or action : Va. 134,7 : W.Va. 113,7. § 2034. Special Lien for Rent. The landlord has a lien on the fixtures, furniture, and othor porsonal property of the tenant or under-tenant, after possession taken under the lease, for not more than one year's rent due, or for any rent which has been due for more than one ' hundred and twenty days : Ky. 66,2,13. RENT. 303 In many states, the landlord has always a lien for his rent (1) on the crops grown during the term, unless otherwise agreed : Ind. 5224 ; 111. 80,31 ; lo. 2017 ; Kan. 55,24; Md." 67,7,13 ; N.C. 1754 ; Ky. 66,2,13 ; Tenn. 4280; Mo. 3083 ; Ark. 4453 ; Tex. 3107,3121 ; S.C* 2399 ; Ga. 1977 ; Ala. 3467 ; Miss. 1301 ; Fla. 137,1 ; La. D. 2873 ; Ariz.'^ 1881,46,1. This special lieu dates frcmi the maturity of the crop : Ga. ; from December 25 (unless otherwise stipulated) : Ahi. 3468. (2) On the furniture in the house: Ky. ; La. ; N.M. 1537; (3) on the farm imple- ments : La. ; ( t) on any other personal property which has been used on the premises : lo. ; Ky. ; Mo. 3091 ; 1883, p. 105 ; Fla. ; D.C. 678. In many states, it is superior to all other liens, older or younger (except, in Georgia, liens for taxes, to which it is inferior) : N.C. ; Ky. ; Tenn. ; Ark. 4454 ; Tex. ; Ga. 1977,2286 ; Ala. 3467 ; 1879,67 ; Fla. In a few, it is paramount lo all other liens or demands lapon such products : Tenn., Miss., Fla. It exists in spite of all laws exempting property from execution, and is paramount thereto : Tex. 3109. In many, the landlord has also a lien, without agreement, on the crops for sup- plies, money, utensils, or other articles advanced by him which are necessary to make crops : Md.'^-* 67,7,14; Va. 1882,230 ; N.C. ; Tenn. 4285 ; Ark. 1885,134,1 ; Tex. 3107 ; S.C.'' 2399 ; Ga. 1978,2287 ; Ala. 3467 ; Miss. 1301 ; Fla. 137,12. In a few, also, on the articles advanced, or property purchased with money or articles so advanced, for the aggregate price or value of all such property or articles advanced : Tex., Ala., Fla. Both these special liens, when created by special contract in writing, are assignable by the landlord: Ga. 1833,390 ; 1978. So, whether so created or not : Ala. 3470. The lien continues (1) for three months after the debt becomes due and until the termination of any suit for rent commenced within that time : Tenn. 4281 ; D.C. ; (2) for six months : Ark. ; (3) for eight months after rent due : Mo. ; (4) as long as property subject to lien remains on the premises, and for one month thereafter : Tex. .3109. Lien lasts for one year after any rent was due : lo. 2017 ; and six months after expiration of the term: 111. The lien continues until rent paid and all conditions performed : N.C. The landlord may recover from the purchaser of the crop, with notice of the lien, the value of the property, so that it does not exceed the amount of the rent and claims : Tenn. 4283. The lieu expires, unless suit is brought before September 1 following the record of the lien : Ariz. 1881,46,1. The lien is not for more than one year's rent, nor for rent which has been due more than one hundred and twenty days : Ky. 66,2,13. The lien is not superior to mortgages recorded or liens which attached prior to record of the lease: Ariz. 1881,46,4. In Maryland, when the rent agreed to be paid is part of the crop, such portion shall not be liable to be levied on by any process for debt acjaiust the tenant (provided the contract is in writing and the rent does not exceed one half of the crop) : Md. 67,7,13. A lien, for rent or advances, for a greater amount than a third of the crop must be written, and recorded in the registry of deeds : S.C. 2399. In cases where there is a sub-tenancy, the superior landlord must enforce his lien against the crop of his immediate tenant before that of the sub-tenant : Ala. 3476. The sub-lessee is only responsible for the rent of such land as is occupied by him : Ark. 4455. But the land- lord has the same remedy against the sub-lessee or assignee that he has against the original tenant : 111. 80,32. And vice versa, the sub-lessee against the landlord : Kan. 55,15. The provisions of this article apply as between persons related as tenant-in-chief and sub- tenant : Ala. 3478. It is not lawful for the tenant, while such rent and advances remain unpaid, to romove, or permit to be removed, from the premises so rented any of the agricultural products, or animals, tools, etc., furnished by the landlord (except, in North Carolina 304 LANDLORD AND TENANT. and Arkansas, without bis consent) : N.C. 1759 ; Ark. 4459 ; 1885,134,2 ; Tex. 3108 ; Ga. 1977. This lieu is enforced (1) by distress-warrant : Va. : Tex. 3112 ; 1881,85 ; Ga. ; Fla. 137, 13 ; (2) by attachment : Kan. ; Mo. 3091 ; Ark. ; D.C. 679. If the tenant abandon the premises, the landlord may seize the crops, whether rent is due or uot : 111. 80,33. Such writ of attachment may be levied on the crop in the possession of the tenant or of any one holding it in his right, or in the possession of a purchaser from him with notice of the lien of the landlord : Ark. 4461. If the tenant removes, or intends to remove, the crop, the landlord may attach at once, though the rent be not due : Kan. 55,27 ; Mo. ; La. 3218-9. When a lease of land with rent payable is made for the purpose of erecting a mill or other buildings thereon, such buildings and all the interest of the lessee are subject to a lien for the rent: Me. 91,36. And in all cases where rent is due, whether under a lease or otherwise, all buildings upon the premises while the rent accrues are subject to a lien, although other persons than the lessee may own them, and whether the land was leased for the purpose of erecting them or not: Me. 91,37. See also Distress, in Part IV. Notes. — ° Only when the rent is payable in a share of such crop. * Not exceeding one third the value of the crop : S.C. 2400. <^ Provided the lease be recorded. <^ Such contract for advances must be in writing. * Applies only in certain specified counties. § 2035. General Lien. In several states, a landlord has a general lien for rent on all the property of the tenant liable to distress, or to levy and sale : N.J. Landlord and Tenant, 4; Vs^. Landlord, etc. 14; Tex." 3122a; Ga. 1977. So, the landlord of stores, dwelling-houses, or other buildings has a lien for rent on all the tenant's goods, furniture, and. effects: Ala. 1885,69. Such lien continues as long as the tenant occupies the demised premises and for one month thereafter: Tex. It is enforceable by distress-warrant: Tex. 3122&; Ga. ; by attachment: Ala. 1883,102,2. And dates from the time of the levy of such warrant : Ga. 1977,2286. It is inferior to liens for taxes : Ga., Ala. ; and to the general and special liens of laborers, but ranks with all other liens, and with other similar liens, according to date as above : Ga. It is superior (up to one year's rent) to any execution, attachment, or other legal process : N.J., Pa. It may be assigned (by writing) : Ga. 1996 ; Ala. 1883,102,6. A tenant may waive, in writing, the benefit of exemption laws for all debts contracted for rents : Kan. 55,30. See also in Part IV. Note. — ° When a liouse or htdlding is demised. § 2036. Express Liens. The tenant may agree in the lease to give the landlord a lien on minerals or timber for the payment of rent, if the lease was for mining or lumbering pur- poses, and such lien is valid as in § 2034: N.C. 1763. Generally, nothing in this article pre- vents the creation (^f express liens by agreement : Tex. 3121. So, in two states, a lien may be given in writing for supplies, services, and articles fui-nished by the landlord or a lessee to a sub-lessee : Tenn. 4284 ; Ga. 1978,2286. This lien is not prior to the lien of the owner of the land for rent : Tenn. § 2037. Farming on Shares. When one party furnishes land and the other party labor, with stipulations expressed or iuiplicd to make division of crop, the relation of landlord and tenant is created with all its incid(>nts, and the portion of the crop due the person owning land is held and treated as the rent : Ala. 3474. In such case there is also a contract of hire, and the laborer has a lien on the crop : Ala. 3475. Such rent, part of the crop, is not liable for the debts of the tenant, provided the contract be in writing and the rent do not exceed one half the crop : Ga. 2289. Contracts by which the landlord is to receive a portion of the crop planted or to be planted, as a compensation for the use or rent of the land, shall vest in him the right to such portion of the crop: Kan. 55,25; Ky. 06,5,1 ; though the crop be planted or raised by a person other than the one with whom he contracted : Ky. And so, even if the land be planted with a differ- ent kind of crop than the one contracted for : Ky. And for the taking or injury to any of the RENT. 305 crops aforesaid the landlord may recover damages against the wrongdoer : Ky. And also have an injunction to prevent such taking, etc. : Ky. A purchaser without notice acquires no right valid as against the landlord's right in such crop until twenty days after the crop severed has heen removed from the rented premises : Ky. The landk)rd lias entry and repk'vin for his share of the crop : Kan. He may recover rent from any purchaser of the crop with notice of the lien : Kan. 55,26. § 2038. Civil Law of Rent-Charges. A rent-charge, created by way of condition to the aUonation of the property, has heen hereinbefore explained. But a rent-charge may be created and imposed on particular property, independent of any alienation of it, for the security or extinguishment of a debt ; and it may be perpetual or temporary, and, in either case, forms a real obligation which passes with the land. By the constitution of rent-charge, the possession of the property does not pass to the obligee ; it is merely a designation of the property which is subject to the obligation. Should the possession be delivered, it becomes another species of contract called antichresis, the rules relative to which are found under the proper head : La. 2017,2018. There are two species of rent, — that of land which is properly called rent, and that of money : La. 2778. § 2039. Civil Law of Rent of Lands. The contract of rent of lands is a contract by which one of the parties conveys and cedes to the other a tract of land, or any other im- movable property, and stipulates that the latter shall hold it as owner, but reserving to the former an annual rent of a certain sum of money, or of a certain quantity of fruits, which the other party binds himself to pay him. It is of the essence of this conveyance that it be made in perpetuity. If it he made for a limited time, it is a lease. A contract of sale, in which it is stipulated that the price shall be paid at a future time, but that it bears interest from the day of sale, is not a contract of rent. On the contrary, a contract made bearing the name of a sale in which the seller does not stipulate the payment of the price, but at a capital bearing interest forever, is a contract of rent. The contract of rent partakes of the nature of sale and of lease. Of sale, inasmuch as it transfers the ownership of the thing, and subjects the party to the same warranty which is imposed on the vendor. And of lease, inasmuch as it subjects the rentee to the payment of rent. The contract of rent is subjected to the same rules as the contract of sale, except in the cases hereafter specified. The thing sold with reservation of rent becomes the property of the person receiving it, in the same manner as a thing sold becomes the property of the purchaser ; but whereas the pur- chaser may make what use he pleases of the thing bought, and may even destroy it, when he has paid the price, the purchaser under reservation of rent is bound to preserve the thing in good c(mditif)n, that it may continue capable of producing wherewith to pay the rent. When a thing sold is destroyed from unforeseen accident, the loss falls entirely on the pur- chaser ; in case of a sale reserving rent, the loss is sustained by both parties ; for on one side the lessee loses the enjoyment of the thing, and on the other the lessor loses the right to demand the rent which is extinguished. But in order that the rent be extinguished the thing must have perished entirely ; if it be lost only in part, the rent is only reducible in proportion to the loss. A thing sold and paid for may be alienated absolutely and unconditionally ; but if it be sold with a rent reserved it remains perpetually subject to the rent into whatsoever hands it may pass. The price of a thing sold is a debt personal to the purchaser. But where there has been- rent reserved it is a charge imposed on the property, and the person alienating it is only answerable for the arrears which became due while he was in the possession. The rent-charge, although stipulated to be perpetual, is essentially redeemable. But the seller may determine the terms of the redemption and stipulate that it shaU not take place until after a certain time, which can never exceed thirty years. If the value of the property has been determined by the contract, the possessor who wishes to redeem cannot be made to pay anything beyond that value. 20 306 LANDLORD AND TENANT. If there has been no valnaticm the rent is considered as fixed at the rate of six per cent on the value, and the lessee may pay the capital at that valuation. The rentor has for the payment of his rent a right of mortgage on the property, commencing from the date of the contract. But he cannot have it seized and sold unless there be at least one entire year's rent due. The rent-charge, being inherent to the property burdened with it, is itself susceptible of beiu''' mort"-aged, except where it has been gratuitously established for the benefit of a third person, on condition that it should not be liable to seizure : La. 2779-2792. Art. 204. Miscellaneous Rights. § 2040. Of the Tenant." In Georgia, it is enacted that the tenant has no right beyond the use of the land and tenements rented, and such privileges as are necessary to the enjoyment of its use: Ga. 228L In several states, every tenant to whom a declaration, or process in ejectment, or other proceeding for the recovery of the land occupied by him, is served, shall forth- with give notice to his landlord under penalty of forfeiting (1) three years' rent to such landlord: N.Y. 2,1,4,27; Pa. Ejectment, 2; 111. 45,17 (two years' rent); Wis. 2197; Del. (two years' rent) 120,72; Mo. 3071. (2) The actual damages sustained by the landlord in consequence thereof : Ark. 4162 ; Cal. 6949; Dak. Civ. C 112L He cannot cut trees, nor remove fixtures, nor otherwise injure the property : Ga. He may use other timber for firewood, and use the pasturage for his cattle : Ga. KoTE. — « See also §§ 1342-3,1346. §2041. Of the Landlord. The tenant cannot dispute the landlord's title : Del. 101,15 ; Ga. 22d3. It is in some states a misdemeanor for the tenant to give up the possession of the premises to any other person thau the lessor (see also in Part V.) : N.C. 1760. The landlord must keep the premises in repair : Ga. 2284. He is liable for all substantial improvements placed on the premises by his consent : Ga. No lessor of y)roperty, merely by reason that he is to receive as reut a share of the proceeds or net profits, or auy other uncertain consideration, shall be held a partner of the lessee : N.C. 1744. § 2042. Taxes. In two states, the tenant of real estate is liable for road and all other taxes upon it, and, unless otherwise agreed in the demise, may deduct all such payments from the rent : Pa. Landlord, etc. 2 and 3 ; Md. 11,65. When a tenant paying rent for real estate is taxed therefor, he may retain out of his rent the taxes paid by him for the same, unless there be an agreement to the contrary: N.Y. 1,13,5,4 ; 'Mich. lOOG ; Deh 120,70 ; Va. 1875,209,45 ; 1879, Special Session, G0,45; W.Va. 187,11 ; 1881,13,15. See also under Taxation, in Part IIL § 2043. Snb-leasin2. In two states, a tenant cannot under-let, assign, or sub-lease, without the landlord's consent: Tex. 3122 ; Ga. 2279. So, in the case of tenancies for a term greater than two years (without consent) : Mo. 3075. In several, unless the landlord consent thereto in writing, every assignment or transfer of his term, or interest in the premises, or any portion thereof, by one who is a tenant at will or by sufffrance, or who has a term less than two years, shall operate a forfeiture to the landlord, who, after ten days' notice to quit in writing, may re-enter: Kan. 55,11-12 ; Ky. 66,1,2 ; Mo. 3076. In Arkansas, tenants who suh-loasc are forbidden to collect the routs due them before their own final settlement with the landlord, except under written direction of the latter: Ark. 4456-7. § 2044. Alterations. It is not lawful for any tenant to make alterations or remove build- infxs erected upon the leased premises, under pain of forfeiting the residue of the term : S.C. 1821. TERMINATION". 307 § 2045. Repairs by Tenant. (Compare § 2062.) In several states, it is declared that no covenant or promise by the lessee for repairs shall bind him (in the ab- sence of special agreement), to re-erect or repair the building, if destroyed by accidental fire without his fault : Va. 113,19 ; W.Va. 04,22 ; Ivy. 63,1,26 ; Mo. 667 ; Miss. 1239. Or to pay for it, or any part thereof: W.Va., Miss. In North Carolina, an agreement in a lease to repair does not bind the tenant to rebuild or repair, in case the house is destroyed or damaged to more than one half its value by accidental fire not occurring from the want of ordinary diligence on his part: N.C. 1752. But the lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof which render it untenantable, except such as are occasioned by the lessee's negligence : Cal. 6941 ; Dak. Civ. C. 1114. And if, within a reasonable time after notice to the lessor, he neglect to repair as above re- quired, the lessee may repair himself, and deduct the expenses, to an extent not exceeding one month's rent, from the rent ; or he may vacate the premises, and be discharged from further payment of rent or performance of other conditions: Cal. 6942; Dak. Civ. C. 1115. § 2046. Waste. (See $ 1343 for the general provisions.) In several states, a tenant for life or years who assigns his estate, but remains in possession, is still liable for waste, in treble damages : N.J. Waste, 7 ; and see in Part IV. § 2047. Fires. No action can be maintained or damages recovered by any person, in the absence of an express contract with the landlord, in whose house a fire accidentally begins : N.J. Waste, 8 ; Del. 88,6 ; Mo. 667. Compare $ 2062. Art. 205. Termination. § 2050. Tenant by Sufferance, (a) In states where the statutes are silent, it would seem that holding over by a tenant or sub-tenant creates a tenancy at sufferance as at common law, which may be determined by either landlord or tenant, without notice to quit, and it is so expressed in a few states : Ind. 5213 ; Kan. 55,9; N.C. 1766; AVash. 2057; S.C. 1817,1819 ; Fla. 137,18. Notice to quit must be given by one of the two parties ; but then the tenancy is immediately terminated: R.I. 232,1 and 4; N.J. Ap2). Distr. Cts. 123. So, in Kentucky, no right of possession is acquired by tenant holding over for ninety days ; but if proceedings are not instituted in that time, then none shall be allowed until one year from the day the first term expired, and so on from year to year: Ky. 66,4,1. There is a summary process for such removal, without notice to quit : N.J. Land- lord, 29; N.C; Miss. 1333. Thelandhtrd has forcible entry and detainer against the person holding OA'cr: Wash. 2058; and SO in most states. See in Part IV. (B) But in other states, notice to quit is required ; thus, in some, by either party, one month's : N.Y. 1,4,7 ; Wis. 2183 ; Md. G7,7,l and 7 ; Ky. 66,G,1 ; Mo. 3078. So, by the landlord only: Ala. 2956; D.C. G81. And in others, three months' notice by the landlord: N.J. Landlord, etc. 27 ; Pa. Landlord, etc. 17 and 20; Del. 101,14 ; Ore. 17,34 ; by either party : Mich. 5774 ; Ore. ; or equal to the intervals of payment, as in § 2051: Mich., Wis., Ore. The landlord must give seven days' notice : N.II. 250,1 and 4 ; three days' : Nev. 56. § 2051. Same Subject : Tenant at 'Will. Tenancies at will may be terminated by the landlord or tenant immediately on giving notice : N.H. 250,1 and 6 ; R.I. 232,1 and 4; S.C. 1818 ; Fla. 137,18. After three days' notice : N.J. Landlord, 29; Col. 1885, p. 226, § 6: five days': Uta. C. Civ. P. 1035. So, where no rent is reserved or due at the time the notice expires : Me. 94,2. 308 LANDLORD AND TENANT. In other states, by the landlord on giving one month's notice: N.Y. 2,1,4,7; Ind. 5207 ; III. 80,6 ; Ky. 66,6,1 ; Cal. 5789 ; Dak. Civ. C. 239 ; D.C. 681 ; three months' : Pa. Landlord, etc. 17 and 20; Del. 101,14. In others, by either party on thirty days' notice : Me. 94,2 ; Wis. 2183; lo. 2015 ; Kan. 55,4; Md. 67,7,1 and 7; 1882,355 ; Mo. 3078. In others, by either party on giving three months' notice, or if rent is reserved pay- able oftener than at quarterly periods (or at thirty-days periods or less, in Kansas) by a notice equal to terms of payment : Mass. 121,12 ; Mich. 5774 ; Minn. 75,40 ; Kan. 5.0,4; Del. 101,14; Ore. 17^,34. So, in Maine, " such notice must expire on a rent-day, if the tenant be not in arrears." In Rhode Island, by either party, in cases of tenancy by parol of houses or farms, on giving notice equal to Iialf the term of the demise, not exceeding three mouths : R.I. 232,3. lu New Hampshire, thirty days' notice, if rent is payable oftener than once in three months, whether due or not: N.H. 250,2. Three months' notice by the landlord is sufficient in all cases where the tenant is entitled to any notice : N.H. 250,2 ; N.J. Landlord, etc. 27 ; Pa. When rent is payable at periods of less than one month, a notice by either party equal to the intervals of payment is sufficient : Wis., lo. When no term is agreed upon, and the rent is payable monthly, so long as the rent is paid the landlord cannot dispossess the tenant before the April 1st following, except after three months' notice (except in case of nuisance, etc.) : N.J. 1884,116. In Georgia, a tenancy at will may be determined by the landlord upon two months' notice, or by the tenant upon one : Ga. 2291. But in case of tenants occupying and cultivating farms, the notice must fix the termination of the tenancy to take place March 1 : lo. 2015. But where an express agreement has been made, whether in writing or not, the tenancy ceases at the time agreed upon, without notice : lo. § 2052. Same Subject : Year to Year. In the states where the statutes recognize tenancy from year to year, three months' notice, in many states, may be given (1) by either party to determine the tenancy : N.H. 250,2 ; R.I. 232,2 and 5 ; Kan. 55,5 ; Del. 120,4; Va. 134,5; W.Va. 113,5; N.C. 1750; Mo. 3077; Uta. 1205; (2) by the landlord to the tenant: Ind. 5209; Del. 101,14; Col. 1885, p. 226, § 6. Thirty days': Wis. 188."),109; Cab 6946; sixty days': 111. 80,5; Miss. 1330. In two others, six month.^' : Md. 67,7,6-7 ; Va. (when the land is not in a town). In one, no uotice is necessary : Ky. 66,4. In Illhiois, the notice may be served at any time during the last four months precodiug the last sixty days of the year. One year's notice is required, Mich. 1885,162. In case of farms, the termination must be on the 1st March : Kan. 55,6. In two, when the holding is by the half year or quarter year, one month's notice : Col., Miss. When from term to term of less than three months, a notice equal to such term : Ind,, Del. When by the month or week, one week's notice : Miss. So, when by the week : Md. Tenancies from month to month, one month's notice by either party: R.I. 1882,317 ; Mo. ; fourteen days' : N.C. ; five days', by the landlord : N.Y. 1882,303 (in New York City only) ; ten days' : Col. ; fifteen days' : Uta. So, the notice need never exceed the term of payment of rent : Cal. 6946. In tenancies from wcclc to week, two days' notice by either party : N.C. In all leases from month to month, the landlonl, upon giving written notice fifteen days before the expiration of the month, may change the terms of the lease, to take effect at the expiration of such month, if the tenant hold over; and in snch case a tenancy will be created according to the terms and conditions specified in such notice : Cal. 5827 ; Nov. 59 ; Dak. Civ. C. 26L § 2053. Same Subject : Written Lease. In several, every lease or written agree- ment for the leasing of land shall absolutely and unequivocally end and determine at the period therein stated, without its being obligatory on the tenant or the landlord to give the notice required by law : R.I. 232,5 ; Kan. 55,9; Va. 134,5 ; W.Va. 113,5 ; Ky. 66,4,1 ; S.C. 1811 ; Oa. 2282. So, in two, when the landlord agrees with the tenant to rent the premises to him for a speci- fied period of time : Mo. 3079 ; or when the time for the duration of the tenancy is specified in the contract : Ind. 5213 ; Ky. 66,6,2. So, in others, notice to quit is necessary only when TERMINATION. 309 the tenancy is not to expire at a fixed time : Ky. 66,1,3 ; Col. 1885, p. 226, § 6 ; Uta. 1207 : Miss. 1330. So, in otliers, the contract may expressly dispense witli tlie notice to quit, and then none need be given: Va., W.Va., Ky., Mo. In all cases where premises are rented for a specified time, by express or implied contract, the tenancy shall be deemed terminated at the end of such time: 111. 80,12-13; Wash. 20.}5. For other states, see in § 2050 or § 2052; as a tenant for years, after the termination of his estate, becomes a tenant by sufferance. § 2054. Same Subject : Non-Payment of Rent. Generally, in all cases of neglect or refusal by any tenant to pay rent, his estate may be determined by the landlord, and he may re-enter (1) on fourteen days' notice : Mass. 121,11 and 12 ; Mich. 5774 ; Wis. 2183 ; Minn. 75,40 ; Ore. 17,34 ; (2) ten days' : Ind. 5211 ; Kan. 55,7 ; Wash. 2056 ; (3) immediately after demand made for possession: 111. 80,8; N.C. 1766; Mo. 3097-8; S.C. 1819 ; (4) five days', if the tenancy be for less than three-months periods: Kan. 55,8 ; (5) on seven days' notice : N.H. 250,2 ; (6) on thirty days' : Me. 94,2 ; (7) on fifteen days' : R.I. 232,6 ; (8) three days' : Nev. 56 ; Col. 1491 ; 1885, p. 502 ; Uta. 1207 ; C.Civ. P. 1035; Fla. 137,18; (9) five days': Va. 130,4; (10) nine days', in parol leases : Ct. 1885,35. In others, when six months' rent is in arrear and unpaid, the landlord may, if he has a right of re-entry, re-enter or proceed in ejectment or otherwise : N.J. Landlord, etc. 7-9 ; 111. 80,4 ; N.C.« 1745; Mo.« 3084,3086; Ark." 4170-2. In a few, the landlord may re-enter and dispossess the tenant immediately : N. J.** Landlord, 9; App. Distr. Cts. 123; Ga. 2285 ; Fla. 137,14. Demand above required may be made at any time after rent due : Mo. 3102. In Indiana, where by express terms of the contract the rent is to be paid in advance, and tenant has entered and refuses or neglects to pay rent, no notice to quit is necessary : Ind. 5213. Such remedy is by action : Vt. 1259 ; N.J. ; Mo. 3100 ; Ark. If the lease specifies a cer- tain time after which there is forfeiture in case of non-jjayment of rent, no action can be had until such time has elapsed : Mo. 3101. If action is brought, no demand of rent is generally necessary : Vt., N.J., Wash. See in Part IV. If a tenant being in arrear for rent, or who was cultivating on shares, or had given a lieu for rent, desert the premises and leave them un- occupied and uncultivated, the landlord has forcible entry and detainer : N.C 1777. In states where distress still exists, this remedy is generally sufficient ; and hence, in several, the landlord can summarily determine the tenancy ouly (but see also above) when the rent has been unpaid for a year (except in Virginia and West Virginia), and the tenant has deserted the premises, having no sufficient distress : N.J. Landlord, etc. 10 ; App. DiMr. Cts. 122 ; Va. 134,6 ; W.Va. 113,6 ; S.C. 1814-5 ; Miss. 1332. Such process can be brought upon fourteen days' notice : N.J., S.C. One month's notice posted on the premises : Va., W.Va. But in several, when in the case of a tenancy for years, at will or sufferance, any rent is unpaid, and no distress can be found, (1) the landlord has summary process on three days' notice requiring rent to be paid : N.J. Landlord, 29 ; App. Distr. Cts. 123 ; Miss. 1333. And in one, (2) such process on fifteen days' notice given between April 1 and September 1, or otherwise thirty : Pa. Landlord, etc. 25. Notes. — "In the noted states, without a formal demand of the rent. * In the case of leases for years or at will only. § 2055. Same Subject : Condition Broken. In several 'States, when the lessee violates any condition of the lease, the landlord may determine the tenancy on seven days' notice: N.H. 250,3 ; on ten days' notice : 111. 80,9 ; three days' : Uta. C. Civ. P. 1035. Such breach may be either by committing waste, by breaking a covenant against assignment, or other breach : Uta. In others, tenancy is determined by declaration in ejectment, etc. : Va. 134,16 ; W.Va. 113, 16 ; N.C. 1766. See also in Part IV. When a tenant at will commits waste, no notice to quit is necessary : Ind. 5213 ; Kan. 55,9. In one, when a tenant who is in arrear for rent, or has agreed to cultivate the land and 310 LANDLORD AND TENANT. pay part of the crop as rent, or who has given the lessor a lien on the crop for rent, deserts the {)remises and leaves them unoccupied and uncultivated, the landlord may enter or recover the premises, as in the case of a tenant holdiug over : N.C. 1777. When a tenant holds land under contract to labor for the landlord, and fails to do so, his right to the lands ceases at once, and he shall abandon them without notice : Ky. 66,6,3. § 2056. Notice. The notice required in §§ 2050-2055 must generally be written: N.H. 250,1; Mass. 121,12; Me. 94,2 ; E.I. 232,1 ; KY. 2,1,4,7 ; N.J. Landlord, etc. 29 ; Ind. 5210,5212 ; 111. 80,5-6 ; Wis. 2183 ; lo. 2015 ; Minn. 75, 40 ; Kan. 55,4 ; Md. 67,1 and 6 ; Ky. 66,6,1 ; Mo. 3078 ; Ore. 17,34 ; Col. 1885, p. 226, § 5; Dak. Civ. C. 240; Uta. 1206 ; Fla. 137,18; D.C. 681. But in one state, a parol notice given by the tenant is sufficient, and the landlord need not then give written notice : Md. 67,7,7. § 2057. Service. Generally, the notice must be served personally, or left at the tenant's (or landlord's) abode v^^ith a person of proper age and discretion : N.Y. 2,1,4,8; N. J. ; Ind. 5214; 111. 80,10; Wis. 2184 ; lo. 2016 ; Kan. 55,10 ; Col. 1885, p. 226, § 7 ; Dak. ; Uta. C. Civ. P. 1036 ; D.C. 681. But if this be impossible it may be affixed oa the premises : N.Y. ; N.J. ; Ind. ; 111. ; Wis.; lo.; Ark. 4171; Col.; Dak.; Uta.; S.C. ; Fla.; D.C. § 2058. Re-entry. When the tenancy is duly termiuated, and after proper notice has beau given, as above provided, the landlord may either re-enter, or proceed by action, as in Part IV. specified: N.Y. 2,1,4,9; Cal. 5790; Dak. Civ. C. 241. So, prob- ably, in many other states. But whenever a right of re-entry is expressly reserved in the lease, or otherwise, such re- entry can be made at any time after the right has accrued only after three days' notice given : Cal. 5791 ; Dak. Civ. C 242. § 2059. Same Subject : Illegal Trade or Nuisance. In several states, whenever the lessee or occupant shall use any part of the premises for an illegal trade, the land- lord may determine the tenancy at once, and has the same remedies as are given in case of the tenant holding over: Me. 17,3; R.I. 80,1; N.Y. 1873,583,1; 0. 4276; III. 4.3,9 ; Ore. 1876, p. 40,5 ; Wash. 1257 ; Uta. 1211 ; Ala. 1885,97,4. And if the owner knowingly lease or give possession of the premises to be occupied in whole or part for an illegal trade, (1) he is jointly and severally liable with the tenant and occupant for resulting damages: N.Y. 1873,58.3,3; 0. 4275; Uh 43,9; (2) or for the other penalty imposed by law : Mass. 99,2 ; Me. 17,4 ; R.I. 80,5 ; Ore. 1870,40,4 ; Ala. 1885,97,2. The following are declared illegal trades or nuisances, for which the landlord may terminate the lease as above : (1) keeping a house of ill-fame : Me. 17,1 ; R.l. 80,1 ; Uta. ; (2) a house for the illegal sale of intoxicating liquors : Me., R.I., 111., Ala. ; (3) a house of resort for lewdness : Me., R.I. ; (4) or gambling : Me., E.I., 0., Ore., Wash., Uta. See also Gaming, Liquors, etc., in Parts IV., V., and Title VI. of this Part. § 2060. Damages by the Tenant. In many states, any tenant, or any person who has gained possession under such tenant, who holds over," after legal termination of his estate after demand from the landlord, is liable for damages to the person entitled, (1) in double the yearly value of the lands : N.Y. 2,1,4,11 ; N.J. Landlord, etc. 25 ; 111. 80,2 ; Wis. 218G; Mo. 3074; Dak. Civ. C. 1976; Fla. 137,15. So, (2) in others, in double the yearly rent : lo. 2012 ; Deb 120,5; Ky. 66,1,3 ; Ark. 4165 ; Uta. 1210 ; S.C." 1808; Ga. 2285 ; Ala. 2956 ; Miss. 1331 ; (3) in treble the rent or value : Cal. 8345 ; Nev. 70. And there is no relief in equity : N.Y. ; N.J. ; Ark. 4166. See also in Part IV. TERMINATION. 311 But there must also be due notice from the landlord (see §§ 2050-2056) : N.Y. (one month's), N.J., lo., Del., Cal., IMiss. And iu one, thirty days' notice is necessary : Ai-k. And besides this, the person so holding over is liable for all special damages, to the person entitled to the land : 'N.Y., Wis., Uta. In one state, the tenant is only hable for damages for the withholding when the case is appealed by him to the Superior Court : N.C. 1775. And he is so liable both when he holds over and when possession is required for non-pay- ment of rent or breach of ct>uditi(>u : N.C. Note. — " Iu the noted states, only wlien such holding over is for tlie space of three months after demand. § 2061. Same Subject. In several, any tenant who does not yield po.ssession at the time after giving the landlord notice to quit, is liable to the landlord (1) for double rent from that time : N.Y. 2,1,4,10 ; N.J. Landlord, etc. 26 ; 111. 80,3 ; Wis. 2185 ; lo. 2012 ; Del 120,5 ; Ky. 66,1,3 ; Mo. 3072 ; Ark. 4163 ; Dak. Civ. C. 1975; S.C. 1820 ; Miss. 1331 ; (2) in treble rent from such time : Cal. 8344. To be recovered in the same manner as single rent would have been : N.Y. ; N.J. ; Mo. 3073; Ark. 4164. § 2052. Destruction of the Premises. (Compare § 2045.) In several states, the lessees or occupants of any building which, without fault of theirs, is destroyed or so injured by the elements or other cause as to be uninhabitable, may (in the absence of written agreement to the contrary) quit and surrender up the premises : Ct. 18,6,1,17 ; N.Y. 186^0,345,1 ; 0. 4113; Minn. 1883,100,1. So, only when a building is totally destroyed by fire : N.J. Landlord, 28, And they are not liable for rent from the time of such destruction or injury (in the absence of written agreement) : Ct. ; N.Y. ; 0. ; Miss. 1240. So, in the case of total destruction only : N.J. But in one, they are still liable for rent, if the landlord proceed to repair as soon as possible : N.J. Or, iu default thereof, the rent ceases until the buildings are put in such perfect repair : N.J. So, in one, they are hable for rent from the time the building is put in perfect repair (if this be done during the continuance of the lease) : Ct. In one, the principal provision is that, if the building is destroyed during the term, or so much damaged that it cannot be made reasonably fit for the purpose for which it was hired except at an expense exceeding one year's rent of the premises, such damage occurring with- out ne,2;ligence on the part of the lessee, his agents, or servants, and there is no agreement iu the lease respecting repairs, or providing* for such a case, and the use of the house damaged was the main inducement to the hiring, the lessee may surrender his estate by a writing delivered within ten days of the damage, paying at the same time all rent due and apportioned to the day of the damage : N.C. 1753, In Georgia, the destruction of a tenement by fire, or the loss of possession by any casualty, not caused by the landlord or from defect of his title, does not abate the rent contracted to be paid : Ga. 2293. In one, a tenant for life, years, or a less term, is not liable for damage occurring on the premises accidentally and not- withstanding reasonable diligence on his part : N.C. 1751. Unless he so contract : N.C. Compare ^ 2047, § 2063. Surrender, In two states, if a lease is surrendered in order to be renewed, and a new lease is made by the chief landlord, such new lease is good and valid without a surrender of the underleases, and the chief landlord, his lessee, and the underlessees enjoy all their rights as if the original lease had continued; and the chief landlord has the same remedy by entry for the rents and duties, so far as they do not exceed rents and duties reserved in the original lease: N.Y. 2,1,4,2; '^. J. La^idlords, etc. 23. When the reversion expectant on a lease is surrendered or merged, the estate which shall for the time being confer, as against the tenant imder the same lease, the next vested right to the same tenements shall, to the extent and for the purpose of preserving such incidents and obligations on the same reversion as, but for the surrender or mere;er thereof, would have sub- sisted, be deemed the reversion expectant on the same lease : 111. 30,40. 312 LANDLORD AND TENANT. § 2064. Emblements."' * When a lease for years of farming land on which a rent is reserved determines during a current year of the tenancy by tlie happening of an uncertain event determining- the estate gf the lessor, the tenant, in lieu of emblements, is to continue his occupa- tion to the end of such current year, and then give up possession to the person entitled, paying him the proportion of the rent due since the termination of the lessor's estate : N.C. 1749. And such tenant is entitled to the emblements as at common law : Va. 135,] ; W.Va. 78 1 • and in others, such tenant is furthermore entitled to a reasonable compensation from the person succeeding to the possession for the tillage and seed of any crop not gathered at the expiration of such current year of the tenancy : Va., W.Va., N.C. If the emblements are severed after the expiration of the current year (§ 2024), the lessee must pay a reasonable rent from such time : Va., W.Va. The tenant at will is entitled to emblements, if the crop is sowed before notice to quit by the landlord, or the tenancy otherwise suddenly terminated : Ga. 2292. The life-tenant, or his legal representatives, is entitled to the emblements when the estate is terminated not by his act : Ga.** 2257. A tenant for years is not entitled to emblements unless the estate be terminated before the period fixed, by the happening of some contingency provided in its creation, and without fault on the part of the tenant : Ga. 2276. In all other cases, the right to emblements is declared to remain as at common law : Va. 135,3 ; W.Va. 78,3. See also in Part IV. Notes. — *» See also § 2024. * See Glossary. Art. 207. Civil Law of Lease. § 2070. Definition. The contract of lease or letting out (besides the rules in which it is subject in common with other agreements, and which are explained under the title : Of Con- ventional Obligations) is governed by certain particular rules, which are the subject of the present title : La. 26G8. § 2071. Of the Nature of the Contract of Lease and of its Several Kinds. Lease or hire is a synallagmatic contract, to which consent alone is sufiicient, and by which one party gives to the other the enjoyment of a thing, or his labor, at a fixed price. To the contract of lease, as to that of sale, three things are absolutely necessary, to wit : the thing, the price, and the consent. The price should be certain and determinate, and should consist of money. However, it may consist in a certain quantity of commodities, or even in a portion of the fruits yielded by the thing leased. The price, notwithstanding, may bo left to the award of a third person named and deter- mined, and then the contract includes the condirtion that this person shall fix the price; and if he cannot or will not do it, there is no lease. The contract would be null if the price were left to be fixed by a person not designated. There are two species of contracts of lease, to wit : — 1. The letting out of things. 2. The lotting out ot labor or industry. To let out a thing is a contract by which one of the parties binds himself to grant to the other tlie enjoyment of a thing during a certain time, for a certain stipulated price which the other binds himself to pay him. To let out labor or industry is a contract by which one of the parties binds himself to do something for the other, in consideration of a certain price agreed on by them both : La. 26G9- 2675. § 2072. Of Letting out Things : General Provisions. The letting out of things is of two kinds, to wit : — 1. The letting out houses and movables. 2. The letting out predial or country estates. He who grants a lease is called the owner or lessor. He to whom a lease is made is called the lessee or tenant. All corporeal things are susceptible of being let oiit, movable as well as immovable, ex- cepting those which cannot be used without being destroyed by that very use. CIVIL LAW OF LEASE. 313 Certaiu incorporeal things may also be let out, such as a right of toll, and the like ; but there are some vvhicli cauuot be the object of hire, such as a credit. A right of servitude cannot be leased separately from the property to which it is annexed. He who possesses a tiling belonging to another may let it to a third person ; but he cannot let it for any other use tlian tliat to which it is usually applied. He who lets out the property of another warrants the enjoyment of it against the claim of the owner. Leases may be made either by written or verbal contract. The duration and the condition of leases are generally regulated by contract, or by mutual consent. If the renting of a house or other edifice, or of an apartment, has been made without fixing its duration, the lease sliall be considered to have been made by the month. The parties must abide by the agreement as fixed at the time of the lease. If no time for its duration has been agreed on, the party desiring to put an end to it must give notice in writing to the other at least fifteen days before the expiration of the mouth which has begun to run. The lease of a predial estate, when the time has not been specified, is presumed to be for one year, as that time is necessary in this State to enable tlie farmer to make his crop and to gather in all the produce of the estate which he has rented. If after tlie lease of a predial estate has expired the fiirmer should still continue to possess the same during one month, without any step having been taken, either by the lessor or by a new lessee, to cause him to deliver up the possession of the estate, the former lease shall continue subject to the same clauses and conditions which it contained; but it shall continue only for the year next following the expiration of the lease. If the tenant either of a house or of a room should continue in possession fijr a week after his lease has expired, without any opposition being made thereto by the lessor, the lease shall be presumed to have been continued, and he cannot be compelled to deliver up the house or room without having received the legal notice or warning above directed. In the cases provided for in the two preceding paragraphs the security which may have been given for the payment of the rent shall not extend to the obligations resulting from tne lease being thus prolonged. When notice has been given, the tenant, although he may have continued in possession, cannot pretend that there has been a tacit renewal of the lease: La. 2676-2G91. § 2073. Of the Obligations and Rights of the Lessor. The lessor is bound from the very nature of the contract, and without any clause to that eflect, — 1. To deliver the tiling leased to the lessee. 2. To maintain the thing in a condition such as to serve for the use for which it is hired. 3. To cause the lessee to be in a peaceable possession of the thing during the continu- ance of the lease. The lessor is bound to deliver the thing in good condition, and free from any repairs. He ought to make, during the continuance of the lease, all the repairs which may accidentally be- come necessary, except those which the tenant is bound to make, as hereafter directed. If the lessor do not make the necessary repairs in the manner required in the preceding paragraph, the lessee may call on him to make them. If he refuse or neglect to make them, the lessee may himself cause tliem to be made, and deduct the price from the rent due, on proving that the repairs were indispensable, and that the price which he has paid was just and reasonable. The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it sliould appear he knew nothing of the existence of such vices and defects at tlie time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee ; and if any loss sliould result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same. If the lessee be evicted, the lessor is answerable for the damage and loss which he sustained by the interruption of the lease. If, during the lease, the thing be totally destroyed by an unforeseen event, or if it be taken for a purpose of public utility, the lease is at an end. If it be only destroyed in part, the lessee may either demand a diminution of the price or a revocation of the lease. In neither case has he any claim for damages. 314 LANDLORD AND TENANT. The lessor has not the right to make any alteration in the thing during the continuance of the lease. If, without any fault of the lessor, the thing cease to be fit for the purpose for which it was leased, or if the use be much impeded, — as if a neighbor, by raising his walls, shall intercept the light of the house leased, —the lessee may, according to circumstances, obtain the annulment of the lease, but has no claim for indemnity. If, during the continuance of the lease, the thing leased should be in want of repairs, and if those repairs cannot be postponed until the expiration of the lease, the tenant must suffer such repairs to be made, whatever be the inconvenience he undergoes thereby, and though he be deprived cither totally or in part of the use of the thing leased to him during the making of the repairs. But in case such repairs should continue for a longer time than one month, the price of the rent shall be lessoned in pro})ortion to the time during which the repairs have con- tinued, and to the parts of the tenement of the use of which the lessee has thereby been deprived. And the \vh(de of the rent shall be remitted, if the repairs have been of such nature as to oblige the tenant to leave the house or the room, and to take another house while that which he had leased was repairing. If, in the lease of a predial estate, the premises have been stated to be of a greater extent than they in reality are, the lessee may claim an abatement of the rent, in the cases and subject to the provisions prescribed in the title : Of Sale. The lessor, and not the lessee, unless there be a stipulation to the contrary, must bear all the real charges with which the thing leased is burdened. Thus, he has to pay the taxes, rents, and other dues imposed upon the thing leased. The lessor is not bound to guarantee the lessee against disturbances caused by persons not claiming any right to the premises ; but in that case the lessee has a right of action for damages sustained against the person occasioning such disturbance. If the persons by whom those acts of disturbance have been committed, pretend to have a right to the thing leased, or if the lessee is cited to appear before a court of justice to answer to the complaint of the person thus claiming the whole or a part of the thing leased, or claiming some servitude on the same, he shall call the lessor in warranty, and shall be dismissed from the suit if he wishes it, by naming the person under whose rights he possesses. The lessor has, for the payment of his rent, and other obligations of the lease, a right of pledge on the movable effects of the lessee, which are found on the property leased. In the case of predial estates, this right embraces everything that serves for the labors of the farm, the furniture of the lessee's house, and the fruits produced during the lease of the land; and, in the case of houses and other edifices, it includes the furniture of the lessee, and the merchandise contained in the house or apartment, if it be a store or shop. liut the lessee shall be entitled to retain, out of the property subjected by law to the lessor's privilege, his clothes and linen, and those of his wife and family ; his bed, 'bedding, and bed- stead, and those of his wife and family ; his arms, military accoutrements, and the tools and instruments necessary for the exercise of the trade or profession by which he gains his living and that of his family. This right of pledge includes not only the effects of the principal lessee or tenant, but those of the under-tenant, so far as the latter is indebted to the principal lessee, at the time when the })roprietor chooses to exercise his right. A payment made in anticipation by the under-tenant to his principal does not release him from the owner's claim. Tills right of pledge affects not f)nly the movables of the lessee and under-lessee, but also those Ixdonging to third persons, when their goods are contained in the house or store, by their own consent, express or imjdied. Movables are not subject to this right when they are only transiently or accidentally in the house, store, or shop, — such as the bageage of a traveller in an inn, merchandise sent to a workman to be made up or repaired, and effects lodged in the store of an auctioneer to be scdd. In the exercise of this right the lessor may seize the objects which are subject to it before the lessee takes them away, or within fifteen days after they are taken away, if they continue to be the property of the lessee, and can be identified : La. 2670-2709. § 2074. Of the Obligations and Rights of the Lessee. The lessee is bound, — 1. To enjoy the thing leased as a good administrator, according to the use for which it was intended by the lease. CIVIL LAW OF LEASE. 315 2. To pay the reut at the terms agreed on. If tlie lessee mak(,'s another use of tlie thing than that for which it was intended, and if any loss is thereby sustained by the lessor, the latter may obtain the dissolution of the lease. The lessee, in that case, shall be bound to pay the rent until the thing is again leased out ; and the lessee is also liable for all the losses which the owner may have sustained through his misconduct. The lessee may be expelled from the property if he fails to pay the rent when it becomes due. When the lessor has given notice to the lessee, in the manner directed by law, to quit the property, and the lessee persists in remaining on it, the lessor may have him summoned before a judge or a justice of the peace and condemned to depart ; and if, three days after notice of the judgment, he has not obeyed, the judge or justice of the peace may order that he shall be ex- pelled and that the property shall be cleared by the sheriff or constable, at his expense. The mode of proceeiling in such cases is provided for by special laws. The sheriff or constable charged with the execution of this order may force the doors and windows, if they are shut, and seize and sell such portion of the effects of the lessee as may be necessary to pay the costs. The lessee is bound to cause all necessary repairs to be made which it is incumbent on les- sees to make, unless the contrary hath been stipulated. The repairs which must be made at the expense of the tenant are those which, during the lease, it becomes necessary to make : — To the hearth, to the back of chimneys and chimney-casing. To the plastering of the lower part of interior walls. To the pavement of rooms when it is but partially broken, but not when it is in a state of decay. For replacing window-glass when broken accidentally, but not when broken either in whole or in the greatest part by a hail-storm or by any other inevitable accident. To windows, shutters, partitions, shop-windows, locks, and hinges, and everything of that kind, according to the custom of the place. The expenses of the repairs which unforeseen events or decay may render necessary, must be supported by the lessor, though such repairs be of the nature of those which are usually done by the lessee. The cleaning of wells and necessaries shall be at the expense of the lessor, unless the con- trai'y has been stipulated. If an inventory has been made of the premises in which the situation at the time of the lease has been stated, it shall be th-e duty of the lessee to deliver back evei'ything in the same state in which it was when taken possession of by him, making, however, the necessary allowance for wear and tear and f(jr unavoidable accidents. If no inventory has been made, the lessee is presumed to have received the thing in good order, and he must return it in the same state, with the exceptions contained in the preceding article. The lessee is only liable for the injuries and losses sustained through his own fault. He is, however, liable for the waste committed by the persons of his family, or by those to whom he may have made a sub-lease. He can only be liable for the destruction occasioned by fire, when it is proved that the same has happened either by his own fault or neglect, or by that of his family. It is the duty of a farmer of a predial estate to prevent the same being encroached upon, and in case of such encroachment, to give notice to tlie proprietor, in defect of which he shall be liable in damages. The lessee has the right to under-lease, or even to cede his lease to another person, unless this power has been expressly interdicted. The interdiction may be for the whole or for a part, and this clause is always construed strictly. The lessee has a right to remove the improvements and additions which ho has made to the thing let, provided he leaves it in the state in which he received it. But if these additions be made with lime and cement, the lessor may retain them on paying a fair price : La. 2710-272G. § 2075. Of the Dissolution of Leases. The lease ceases of course at the expiration of the time agreed on. 316 LANDLORD AND TENANT. It is also dissolved by the loss of the thing leased. The neglect of the lessor or lessee to fulfil -his engagements may also give cause for a disso- lution of the lease, in the manner expressed conceruiug contracts in general, except that the judge cannot order any dehiy of the dissolution. A lease made by one having a right of usufruct ends when the right of usufruct ceases. The lessee has no riglit to an indemnification from the heirs of the lessor if the lessor has made known to him the title under which lie possessed. A contract fur letting out is not dissolved by the death of the lessor, nor by that of the les- see ; their respective heirs are bound by the contract. The lessor cannot dissolve the lease for the purpose of occupying himself the premises, unless that right has been reserved to him by the contract. If the lessor sells the thing leased the purchaser cannot turn out the tenant before his lease has expired, unless the contrary has been stipulated in the contract. If the lessor has reserved to himself in the agreement the right of taking possession of the thing leased whenever he should think proper, he is not bound to make any indemnification to the lessee, unless it be specified by the contract ; the lessor is only bound in that case to give him the legal notice or warning above prescribed. If it has been agreed by the parties, at the time the lease was made, that in case the prop- erty was sold the purchaser should be at liberty to take immediate possession, and if no indemnification has been stipulated, the lessor shall be bound to indemnify the lessee in the following manner : — If it be a house, room, or shop, the lessor shall pay as indemnification to the evicted tenant a sum equal to the amount of the rent for the time which is to elapse between the notice and the going out. If it be a predial estate, the indemnification to be paid by the lessor to the evicted farmer shall be the third of the price of the rent during the time which has yet to elapse. Tlie quantian of damages sliall be determiucd by skilful men, when the controversy relates to manufactures, mines, and things of that kind, which require great disbursements. The purchaser who wishes to use the right reserved by the lease is moreover bound to give previous notice to the tenant as above required. The farmers of predial estates shall have one year's notice. Previous to the expulsion of a farmer or tenant the before-prescribed indemnifications must be paid to him, either by the lessor, or in his default, by the new purchaser. If tlie lease has not been reduced to writing the purchaser cannot be compelled to give any indemnification. A person who has purchased an estate, the former proprietor of which has reserved by contract the right of redemption, cannot turn out the lessee until, by the expiration of the time fixed for the redemption, the purchaser becomes the irrevocable owner. The tenant of a predial estate cannot claim an abatement of the rent under the plea that, during the lease, either the whole or a part of his crop has been destroyed by accidents, unless those accidents be of such an extraordinary nature that they could not have been foreseen by either of the parties at the time the contract was made, — such as the ravages of war extending over a country then at peace, and where no person entertained any apprehension of being ex- posed to invasion or the like. But even in these cases, the loss suffered must have been equal to the value of one half of the crop at least to entitle the tenant to an abatement of the rent. The tenant has no right to an abatement if it is stipulated in the contract that the tenant shall run all the chances of all fureseen and unforeseen accidents. The tenant cannot obtain an abatement when the loss of the fruit takes place after its sep- aration from the earth, unless the lease gives to the lessor a portion of the crop in kind ; in which C4ise the lessor onsjht to bear his share of the loss, provided the tenant has committed no unreasonable delay in delivering his portion of the crop : La. 2727-2744. FIXTURES. 317 CHAPTER X. — FIXTURES AND INCORPOREAL RIGHTS. Art. 210. Fixtures. § 2100. Definition. (Compare also $ 1300.) A thing is deemed a fixture when it is attached to the laud by roots [trees] ; or imbedded in it [walls] ; or permanently resting upon it [buildings] ; or permanently attached to what is thus permanent [as by means of cement, plaster, nails, bolts, or screws] : Cal. 5660; Dak. Civ. C. 165. In Georgia, fixtures are defined to be anything intended to remain permanently in its place, though not actually attached to the land (as, e. g., raU fences) : Ga. 2219. In Massachusetts, fixtures, as between life-tenants and the landlord, are declared to be all those things that would at common law be fixtures as between the landlord and a tenant for years : Mass. 126,10. This does not affect the right of the owner of land to make a different arrangement by will or otherwise as to their removal ; nor does it impair or affect the provisions of any will or instru- ment by which the estate is created : Mass. 126,11. Sluice boxes, flumes, hose, pipes, railway tracks, cars, blacksmith shops, mills, and all other machinery or tools used in working or developing a mine are deemed fixtures of the mine : Cal. 5661 ; Dak. Civ. C. 166. Water-wheels, steam-engines, boilers, belting, pipes, and vats, etc., set or used in any manu- facturing establishment, are declared to be fixtures when they belong to the owner of the real estate to which they are attached ; but all other machinery, tools, or apparatus of every descrip- tion so used are declared personal estate, except for purposes of taxation : R.I. 171,1 and 2. In Georgia, machinery not actually attached, but movable at pleasure, is declared not to be a fixture : Ga. 2219. Carpets, stoves, and funnels are not real estate, and do not pass by a deed thereof: Me. 73,1. An outgoing tenant at will or for years cannot remove from the land or sell manure made in the ordinary course of husbandry ; such manure being, in the absence of express agreement, attached to the realty so as to pass with the same to the landlord : Va. 1877,290. Anything intended to remain permanently in its place, though not actually attached to the land (as, e.g., a rail fence), is a fixture : Ga. Water-pipes are fixtures: La. 467. Things which the owner of a tract of land has placed upon it for its service and improve- ment are immovable by destination. Thus the following things are immovable by destination when they have been placed by the owner for the service and improvement of a tract of land, to wit : — Cattle intended for cultivation ; implements of husbandry ; seeds, plants, fodder, and manure ; pigeons in a pigeon-house ; beehives ; mills, kettles, alembics, vats, and other machinery made use of in carrying on the plantation works; the utensils necessary for working cotton and saw mills, tafia distilleries, sugar refineries, and other manufactures. All such movables as the ovnier has attached permanently to the tenement or to the building are like- wise immovable by destination. The owner is supposed to have attached to his tenement or building forever such movables as are affixed to the same with plaster or mortar, or such as cannot be taken oft' without being broken or injured, or without breaking or injuring the part of the building to which they are attached : La. 468-469. The following are considered as immovable from the object to which they apply : — The usufruct and use of immovable things. A servitude established on an immovable estate. An action for the recovery of an immovable estate or an entire succession : La. 471. § 2101. Appurtenances. A thing is to be deemed incidental or appurtenant to land when it is by right used with the land for its benefit, as in the case of a way or watercourse, or passage for light, air, or heat, from or across the land of another: Cal. 5662; Dak. Civ. C. 166. § 2102. Removal of Fixtures. In Massachusetts, fixtures annexed to the freehold by a life tenant or his assigns may be removed during the continuance of the life estate, or within a reasonable time after its determination : Mass. 126,10. So, a tenant holding by demise from a tenant in dower may remove any building or struc- ture by him erected, provided no damage result to the reversioner: Del. V. 15,170. When a 318 FIXTURES AND INCORPOREAL RIGHTS. person affixes his property to the land of another without an agreement permitting him to re- move it, the thing affixed belongs to the owner of the land, unless he chooses to require the former to remove it: Cal. 6013 ; Dak. Civ. C. 583. The owners of particular estates of free- hold or for years in uniuiproved lots in towns may within ninety days after their interests cease remove any improvements they may erect thereon : Ky. 1882,383. But a tenant may remove from the demised premises at any time during the continuance of his term anything affixed thereto for purposes of trade, manufacture, ornament, or domestic use, if the removal can be effected without injury to the premises, unless the thing has, by the manner in which it is affixed, become an integral part of the premises : Cal. 6019 ; Dak. § 2103. Effect of Removal. In Georgia, it is enacted that anything detached from the realty instantly becomes personalty : Ga. 2220. And a thing so detached Tnay be the subject of larceny, even by the person detaching it : Ga. See, for other states, in Part V. § 2104. Preservation of Timber. Several Western states have laws encouraging the growth of timber ; (A) by exemption from taxation for a certain number of years : Wis. 1469-1470 ; and (B) in others by a bounty paid for plantations : 111. 136,1 ; Wis. ; Minn. 124,70; Neb. 2,4,10; Mo. 5697; Nov. 3838; Col. 3426; Dak. 1885,145. See U.S. 1878,190. See also in Part III. And the increased value of the land caused by such trees is not to be taxed : Nev. 3841 ; Col. 3425. Art. 211. Franchises. See also in Part TIL, Corporations. § 2110. Grant of Franchises. It is, in Georgia, enacted that no franchise granted by the State shall be held exclusive unless plainly expressed or so declared in the grant : Ga. 2234. § 2111, Ferries. It is also enacted that the right to establish and keep a public bridge or fc'rry is a franchise to be granted by the State : Ga. 2233. When such a grant interferes with the owner's right of exclusive possession, just compensation to him must be first made. Art. 213. Servitudes. § 2130. Definitions. All servitudes which affi^ct lands may be divided into two kinds, personal and real. Personal servitudes are those attached to the person for whose benefit they are established, and terminate with his life. This kind of servitude is of three sorts : usufruct, use, and habita- tion. Real servitudes, which are also called predial or landed servitudes, are those which the owner of an estate enjoys on a neighboring estate for the benefit of his own estate. They are called predial or landed servitudes, because, being established for the benefit of an estate, they are rather due to the estate than to the owner personally. This kind of servitude forms the subject of the present title : La. 646. The land to which an easement is attached is called the dominant tenement; the land upon which the burden is laid, the servient : Cal. 5803 ; Dak. Civ. C. 246. Servitudes are either discontinuous or continuous. Continuous servitudes are those whose use is or may be continual without the act of man. Such are aqueducts, drain, view, and the like. Discontinuous servitudes are such as need the act of man to be exercised. Such are the rights of passage, of drawing water, pasture, and the like : La. 727. They are either visible or non -apparent : — Apparent servitudes are such as are to be perceivable by exterior works ; such as a door, a window, an aqueduct. Non-apparent servitudes are such as have no exterior sign of their existence ; such, for instance, as the prohibition of buildinc; on an estate, or of building above a particular height : La. 728. SERVITUDES. 319 § 2131. Predial Servitudes. A real or predial servitude is a charge laid on an estate for the use aud utility of auotiier estate belonging to another owner : La. 647. From tlio dofiuitiou contained in tlie preceding article, it follows that to establish a predial or real servitude there must first be two diflerent estates, one of M'liich owes the servitude to the other. § 2132. Personal Servitudes. If then a stipulation be made of a servitude in favor of a person, and not in favor of an estate, the obligation will not be null on that account, but it will not create a real servitude : La. 648. § 2133. Ownership of Tenements. It is necessary, in the second place, that these two estates belong to two different persons ; for if they are both the property of one person, the application which the owner makes of one to the advantage of tlie other is not called a ser- vitude, but a disposition of the owner, which will be explained hereafter : La. 649. § 2L34. Nature of Right. It is necessary, in the third place, that the servitude have for its object the use or benefit of the estate in favor of which it is established. But it is not necessary that this benefit exist at the time of the contract ; a mere possible convenience or remote advantage is sufficient to support a servitude. In order to render a servitude null, it is not enough that it should appear to be useless; it must be shown that at no time, and under no circumstances, can it possibly become useful to the person in wliose favor it is enacted : La. 650. § 2135. Situation of Tenements. Predial servitudes being due from one estate to another, it commonly happens that these estates are in the same neighborhood. Nevertheless this neighborhood is not a condition essential to the existence of the servitude. Nor is it necessary that the estate which owes the servitude and that to which it is due be contiguous ; it suffices that they be sufficiently near for one to derive benefit from the servitude on the other: La. 651. § 2136. Servitudes Appendant. A servitude is an incorporated right which cannot exist witliout the estate to which it belongs, and of which it is an accessory. Servitude is a right so inherent in the estate to which it is due, that the faculty of using it, considered alone and independent of the estate, cannot be given, sold, let, or mortgaged without the estate to wliich it appertains, because it is a servitude which does not pass to the person but by means of the estate : La. 652,654. § 2137. Servitudes Unchangeable. Servitudes being essentially due from one estate to another for tlie advantage of the latter, they remain the same as long as no change takes place in regard to the two estates, whatever change may take place in the owners : La. 653. § 2138. Negative Obligation. One of the characteristics of a servitude is, that it does not oblige the owner of the estate subject to it to do anything, but to abstain from doing a particular thing, or to permit a certain thing to be done on his estate : La. 655. § 2139. Servitudes Indivisible. The rights of servitude, considered in themselves, are not susceptible of division, either real or imaginary. It is impossible that an estate should have upon another estate part of a right of way, or of view, or any other right of servitude, and also that an estate be charged with a part of a servitude. The use of a right of servitude may be limited to certain days or hours ; but thus limited, it is an entire right, and not part of a right. From thence it follows that a servitude existing in favor of a piece of land is due to the whole of it, and to all the parts of it, so that if the land be sold in parts, every purchaser of a part has the right of using the servitude in toto : La. 656. Btit, though the right of servitude be indivisible, and must be established for the whole, and not for a part, nothing prevents the advantage resulting from it from being divided, if it be susceptible of division ; as, for example, the right of taking a certain number of loads of earth from the land fif another, or of sending to pasture a certain number of animals on the land of another : La. 657. 320 FIXTURES AND IXCORPOREAL RIGHTS. § 2140. Effect of Servitude. The part of an estate upon which a servitude is exercised does not cease to belong to the owner of the estate ; he who has the servitude has no right of ownership in the part, but only the right of using it. Hence the soil of public roads belongs to the owner of the land on which they are made, though the public has the use of them ; the owners of the land cannot change the roads except in conformity with the regulations of the police established on tliis subject : La. 658. § 2141. Origin of Servitudes. Servitudes arise either from the natural situation of the places, from the obligations imposed by law, or from contract between the respective owners : La. 659. § 2142. Natural Servitudes. Servitudes which originate from the natural situation of the place are, in Louisiana, (1) rights to streams, as against the proprietors above and below (see ^ 1170,1171); (2) rights to fences and enclosure (see Art. 218) : La. 660-8. Every proprietor has a right to make an enclosure around his lands : La. 662. He may compel his neighbors to fix and mark the limits of their estates which are con- tiguous to his. The limits are established, and boundary stones or posts placed at theii- joint expense : La. 663. § 2143. Legal Servitudes. Servitudes imposed by law are established either for the public or common utility, or the utility of individuals. Servitudes imposed for the public or common utility relate to the space which is to be left for the public use by the adjacent proprietors on the shores of navigable rivers, and for the making and repairing of levees, roads, and other public or common works. AU that relates to this kind of servitude is determined by laws or particular regulations. The law imposes upon the proprietors various obligations towards one another, independent of all agreements ; and those are the obligations which are prescribed in the following sections : La. 664-6. § 2144. Sic utere tuo, etc. Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it which may deprive his neighbor of the liberty of enjoying his own, or wliich may be the cause of any damage to him. Although one be not at liberty to make any work by which his neighbor's buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor. Thus he who is not subject to any servitude originating from a particular agreement in that respect may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbor's house, because this act occasions only an inconvenience, but not a real damage : La. 667-8. § 2145. Nuisance. If the work or materials for any manufactory or other operation cause an inconvenience to those in the same or in the neighboring houses by diffusing smoke or nau- seous smell, and there be no servitude established by wliich they are regulated, their sufferance must be determined by the rules of the police or the customs of the place : La. 669. § 2146. Obligation to Repair. Every one is bound to keep his buildings in repair, so that neither their fall, nor tliat of any part of the materials composing them, may injure the neighbors or passengers, under the penalty of all losses and damages which may result from the neglect of the owner in that respect. When a building threatens ruin the neighbor has a right of action against the owner to com- pel him to cause such a building to be demolished or propped up. In the mean time, if there be danger of any damage by its fall, he may be authorized to make the necessary works, for which he shall be reimbursed, after the danger shall have been ascertained by experts : La. 670-1. § 2147. Destruction of Property. The councils and other municipal bodies of cities and other incorporated places of this State are authorized to make such regulations as they may think proper to determine the mode of proceeding in the case of fire, when it becomes EASEMENTS. 321 necessary in order to arrest its progress to pull do\ra houses which may have taken fire, or even those wliich the fire has not reached. But in this case the proprietors whose houses have heen thus pulled down before they have taken fire sliall have a right to an indemnification in proportion to their loss, which indemnifi- cation shall be paid by the corporation of the city or place where the conflagration has taken place by means of an extraordinary and proportional tax, which shall be laid to this eflect upon all the proprietors of houses of the said place, or in any other manner, from the funds of the corporation : La. 672. Compare also $ 1149. § 2148. Other Legal Servitudes. The other particular servitudes imposed by law relate to the following objects : — 1. To boundary-walls, enclosures, and ditches. 2. To cases where it is necessary to have double or counter walls. 3. To the right of lights and of view on the property of a neighbor. 4. To carrying ofi' water from roofs. 5. To the right of passage and of way : La. 674. Art. 215. Easements. § 2150. Of Conventional or Voluntary Servitudes — Of the Different Kinds of Conventional or Voluntary Servitudes. Owners have a right to establish on their estates or in favor of their estates such servitudes as they deem proper; provided, nevertheless, that the services be not imposed on the person or in favor of the person, but only on an estate or in favor of an estate ; and provided, moreover, that such services imply nothing contrary to public order. The use and extent of servitudes thus established are regulated by the title by which they are granted, and if there be no title, by the following rules : — AH servitudes are established either for the use ot houses or for the use of lands. Those of the first kind are called urban servitudes, whether the buildings to which they are due be situated in the city or in the country. Those of the second kind are called rural servitudes : La. 709-710. § 2151. Easements. The principal kinds of urban servitudes are the following : — The right of support ; that of drip ; that of drain or of preventing the drain; that of view or of lights, or of preventing the view or lights from being obstructed ; that of raising buildings or walls, or of preventing them from being raised ; that of passage ; and that of drawing water. The principal rural servitudes are those of passage, of way, of taking water, of the conduct- ing of water or aqueduct, of watering, of pasturage, of burning brick or lime, and of taking earth or sand from the estate of another: La. 711 and 721. Appendant Easements. In two states, the following servitudes upon land may be at- tached to other land as incidents or appurtenances, and are then called easements: (1) the right of pasture ; (2) of fishing ; (3) of taking game ; (4) of way ; see Art. 220 ; (5) of taking water, wood, minerals, etc. ; (G) of transacting business upon land ; (7) of conducting lawful sports upon land ; (8) of receiving air, light, or heat from or over, or discharging the same upon, land ; (9) of receiving water from, or discharging the same upon, land ; (10) of flooding land ; (11) of having water flow without diminution or disturbance of any kind ; (12) of using a wall as a party-wall (Art. 217) ; (13) of receiving more than natural support from adjacent land or things affixed thereto ; (14) of having the whole of a division fence maintained by a co-terminous owner; (15) of having public conveyances stopped or of stopping the same on land ; (16) the riglit of a seat in church ; (17) of burial : Cal. 5801 ; Dak. Civ. C 244. Servitudes being established on estates in favor of other estates, and not in favor of persons, it the grant of the right declare it to be for the benefit of another estate, there can be no doubt as to the nature of this right, even though it should not be called a servitude. If, on the other hand, the act establishing the servitude does not declare that the right is given fur the benefit of an estate, but to a person who is the owner of it, it must then be considered whether the right granted be of real advantage to the estate, or merely of personal convenience to the owner. If the right granted be of a nature to assure a real advantage to an estate, it is to be pre- sumed that such right is a real servitude, although it may not he so styled. Thus, for example, if the owner of a house contiguous to lands bordering on the high road 21 322 FIXTURES AND INCORPOREAL RIGHTS. should stipulate for the right of passing through lands, without it being expressed that the passage is fur the use of liis house, it would be not the less a real servitude, for it is evident that the passage is of real utility to the house : La. 754-756. Easements in Gross. And the following may be granted and held not attached to land : (1) the right to pasture aud of hsluug and taking game; (2) of a seat in church; (3) of burial; (4) of taking rents and tolls; (5) of way; (6) of taking water, wood, minerals, aud other things : Cal. 5802 ; Dak. Civ. C. 245. If, on the other baud, the concession from its nature is a matter of mere personal con- venience, it is considered personal, aud cannot be made real but by express declaration of the parties. Thus, for example, if the owner of a house near a garden or park should stipulate for the right of walkiug and gathering fruits and flowers therein, this right would be considered per- sonal to the individual, and not a servitude in favor of the house or its owner. But the right becomes real and is a predial servitude if the person stipulating for the servi- tude acquires it as owner of the house, and for himself, his heirs and assigns. When the right granted is merely personal to the individual it expires with him, unless the contrary has been expressly stipulated : La. 757-8. § 2L52. Creation. A servitude can be created only by one who has a vested estate in the servient tenement : Cal. 5804 ; Dak. Civ. C. 247 ; La. 729. A servitude thereon cannot be held by the owner of the servient tenement (see also $ 2133) : Cal. 5805 ; Dak. Civ. C. 248. How Servitudes are Established. He who has the naked o\vnership of an estate cannot subject it to a servitude without the consent of the usufructuary, unless it be to take effect at the termination of the usufruct. The servitudes which do no injury to the rights of the usufructuary, such as that of not raising his house higher than it is, are excepted : La. 730. It is not sufficient to be an owner in order to establish a servitude ; one must be master of his rights and have the power to alienate, for the creation of a servitude is an alienation of a part of the property. Thus minors, married women, persons interdicted, cannot establish servitudes on their estates, except according to the forms prescribed for the alienation of their property. The husband cannot establish a servitude on the dotal property of his wife, even with her consent, unless it be expressly stipulated in the marriage contract that he shall be permitted to alienate her dotal property with her consent. An attorney in fact cannot impose a servitude on the estate intrusted to him without a special power to that effect. The co-proprietor of an undivided estate cannot impose a servitude thereon without the consent cjf his co- proprietor. The contract of servitude, however, is not null ; its execution is suspended until the consent of the co-proprietor is given. The co-proprietor who has consented to the establishment of a servitude on property held in common cannot prevent the exercise of the servitude by objecting that the consent of his co- proprietor has not been given. If he becomes owner of the whole estate he is bound to permit the exercise of the servitude to which he has before consented. If the co-proprietor has established the servitude for his part of the estate only, the consent of the other owners is not necessary, but the exercise of the servitude must be suspeudcd until his part be ascertained by a partition. In this case he to whom the servitude has been granted iriay compel the co-proprietor from whom he received it to sue for a partition, or may sue for it himself. If iu the suit for a partition it be determined that the estate be disposed of by licitation, and he who has granted the servitude becomes owner of the whole, the servitude then exists on the whole estate as if he had always been the sole owner. But if by the licitation the estate be adjudicated to any other of the co-proprietors, the servitude becomes extinct, and the person who granted it is bound to return the price he received for it. If a co-proprietor who has established a servitude sell his undivided portion to a person who afterwards, by licitation, becomes owner of the whole, he is, like his vendor, bound to permit the exercise of the servitude on the whole estate. EASEMENTS. 323 Servitudps are established by all acts by which property can be transferred, and as they are not susceptible of real delivery, the use which the owner of the estate to whom the servitude is granted makes of this right supplies the place of delivery. Servitudes may be established on all things susceptible of ownership, even on the public domain, on the common property of cities, and other incorporated places. It is not contrary to the nature of servitudes that the same servitude should be established on several estates for the benefit of one, or that the same estate should be subject to a servitude for the benefit of several estates. By the title by which a servitude is established in favor of an estate a servitude may also be imposed on that estate for the benefit of the estate from which the first servitude is due. In cases where there are reciprocal servitudes, all the rules concerning simple servitudes are applicable. A servitude may be established or acquired in favor of an estate which does not exist, or of which one is not yet the owner ; but if the hope of becoming the owner be not realized, the servitude flills. It may also be stipulated that an edifice not yet built shall support a servitude, or shall have the benefit of one when it is built. A servitude may be established or released for a certain part of an estate, provided the part be designated. He whose estate is incumbered with a servitude may impose on it other servitudes of any kind, provided they do not afi'ect the rights of him who has acquired the first. An estate being mortgaged does not prevent the owner from establishing servitudes on it, saving always to the creditor the right of demanding his debt, if the establishment of the servi- tude evidently depreciates the value of the estate or of causing the estate to be sold as free from all servitudes ; but the person who has acquired the servitude shall have in such case his action for the restitution of the value of the servitude against the owner of the estate. The exercise of servitudes may be limited to certain times. Thus the right of drawing water may be confined to certain hours, the right of passage to a part of the day. Legal servitudes, and even those which result from the situation of places, may be altered by the agreement of parties, provided the public interest does not suifer thereby : La. 731-752. § 2153. Extent. The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired : Cal. 5806 ; Dak. Civ. C. 249. Servitudes which tend to afiect the free use of property, in case of doubt as to their extent or the manner of using them, are always interpreted in favor of the owner of the property to be afifected : La. 753. § 2154. Apportioning Easements. In case of partition of the dominant tenement the burden must be apportioned according to the division of the tenement, but not in such a way as to increase the burden on the servient tenement : Cal. 5807 ; Dak. Civ. C 250. § 2155. Future Estate. The owner of a future estate in a dominant tenement may use easements attached thereto for the purpose of viewing waste, demanding rent, or removing an obstruction to the enjoyment of such easements, although such tenement is occupied by a tenant: Cal. 5808; Dak. Civ. C. 251. § 2156. Actions to Enforce Easements may be brought by the owner of any estate in the dominant tenement or by the occupant thereof: Cal. 5809 ; Dak. Civ. C. 252. The owner in fee of a servient tenement may maintain an action for the possession of the land against any one unlawfully possessed thereof, thoui^th a servitude exists thereon in favor of the public : Cal. 5810 ; Dak. Civ. C. 253. See also in Part IV. § 2157. Extinguishment. A servitude is extinguished, (1) by the vesting of the right to the servitude and the riglit to the servient tenement in the same person (i. e., confusion) (cf. § 2133) : Cal. 5811 ; Dak. Civ. C. 254; La. 783 ; (2) By the destruction of (a) the servient tenement: Cal., Dak., La. ; (,3) of the dominant tenement : La. ; (3) by the performance of any act upon either tenement, by the owner of the servitude or with his assent, which is incompatible with its nature or exercise : Cal., Dak. ; (4) when the servitude was acquired by enjoyment, by the disuse thereof by the owner of the servitude for the period of prescription (Art. 229) : Cal., Dak., La. ; (.5) by the abandonment of that part of the estate which owes the servitude : La. ; 324 FIXTURES AND INCORPOREAL RIGHTS. (6) by renunciation, or express or tacit remission by the owner of the servitude : La. ; (7) by ex- piration of time for which the servitude was granted, or the happening of a dissolving condition attached : La. ; (8) by the dissolution of the right of him who created it : La. Also, they are extino-uished when the things are in such a situation that they can no longer be used, and when they remain perpetually in such a situation. If the things are re-established in such a manner that they may be used, the servitudes will only have been suspended, and they resume their effect unless, from the time they ceased to be used, sufficient time has elapsed for prescription to operate against them : La. 784-5. If a wall in common, or a house subject to a servitude, or to whi(;h a servitude is due, be rebuilt after having been destroyed, demolished, or thrown down, all the servitudes, active and passive, which existed on this wall or house continue to exist on the new wall or house, but they cannot be augmented ; provided always that they be rebuilt within such a time that pre- scription has not operated against them, as is mentioned in the following paragraphs. If the house or edifice which has been destroyed, demolished, or thrown down by any acci- dent, belonged to the owner to whom the servitude is due, the servitude will be extinguished if he does not rebuild the house or edifice within the time required for prescription, because it depended on him alone, by rebuilding his house, to revive the servitude it enjoyed. If, on the contrary, it is the house or edifice subject to the servitude which has been destroyed, demolished, or thrown down, the owner cannot, by rebuilding it after the time required for prescription, impair the servitude to which the house or edifice was previously subject, because he to whom the sei-vitude was due had not the power to compel the other to rebuild the house or edifice thus destroyed : La. 786-8. Art. 216. Of New Works. § 2160. Louisiana Law. . By a new work is understood every sort of edifice or other work which is newly commenced on any ground whatever. When the ancient form of a work is changed, either by an addition being made to it, or by some part of the ancient work being taken away, it is styled also a new work. Opposition may be made to every species of new work fi-om which injury is apprehended, whether the work be in a city or in the country, in places built up or not built up, public or private, conformably to the rules hereinafter prescribed. Opposition cannot be made to all works indiscriminately, but only to those which come under the denomination of new works, such as the constructing of new buildings or the demoli- tion or destruction of old works. Opposition cannot be made to those works which any one makes for the repairs and sup- port of an old building, if its ancient form be not changed thereby, because, unless this be done, it is not properly a new work. Opposition cannot be made to the works which any one makes for the repairs or cleaning of his canals, spouts, sewers, or aqueducts, whatever inconvenience or detriment may result there- from, because it is for the public interest and safety that these things should be repaired and kept clean. Works which have been formerly built on public places, or in the beds of rivers or navigable streams, or on their banks, and which obstruct or embarrass the use of these places, rivers, streams, or their banks, may be destroyed at the expense of those who claim them at the instance of the corporation of the place, or of any individual of full age residing in the place where they ar» situated. And the owner of these works cannot prevent their being destroyed under pretext of any prescription or possession, even immemorial, which he may have had of it, if it be proved that at the time these works were constructed the soil on -which they are built was public, and has not ceased to be so since. If the works formerly constructed on the public soil consist of houses or other buildings which cannot be destroyed without causing signal damage to the owner of them, and if these houses or other buildings merely encroach upon the public way, without preventing its use, they shall be permitted to remain ; but the owner shall be bound, when he rebuilds them, to relinquish that part of the soil or of the public way upon which they formerly stood. The corporations of cities, towns, and other places may construct on the public places, in the beds of rivers and on their banks, all buildings and other works which may be necessary WALLS. 325 for public utility, for the mooring of vessels and the discharge of their cargoes, within the extent of their respective limits. If any one commence on his own land a building or other new work which may be of detriment to his neighbor, or any other individual, the latter may, in the presence of wit- nesses, forbid him to continue the work. If the person thus forbidden to continue his works will not suspend them, the person making the opposition may apply to the judge in order to have them destroyed at the expense of the person making them, on alleging the injury and detriment the work may cause to him. The plaintiff, who sues in opposition, may obtain from the judge a mandate command- ing the defendant to suspend his works until further order, if he affirm under oath at the foot of his petition that he has forbidden the defendant to continue his works, and that the construction may cause him injury or damage, and if he give good and sufficient security to the defendant in such sum as shall be fixed by the judge, to answer for the damage caused to the defendant, in case the opposition should not be well founded. Though the judge may have commanded the defendant to suspend his works, he may, in the course of the suit, authorize him to continue them, if he thinks their continuance will not cause an irreparable injury to the plaintiff; but the defendant will be bound to give good and sufficient security, in such sums as shall be fixed by the judge, to pay any damages which may be caused to the plaintiff by their being continued, and that he will place every- thing in its former situation, if he should be finally condemned to destroy his works. If, on the trial of the case, it be determined that the new works can cause injury or detri- ment to the person who complains of them, and who has made opposition to their erection, the judge shall order them to be destroyed at the expense of him who has caused them to be constructed, how far soever they may be advanced, even if they should be finished, under the authority given and the security furnished according to the terms of the preceding article, unless the works can be so changed as to cause no detrhnent to the complainant. If, after the commencement of a suit for the destruction of new works, the defendant should sell the land upon which these works stand, the judgment which orders the destruction of them shall be executed against the purchaser, though he may have been ignorant of the pro- hibition made to his vendor to discontinue them, saving always his recom-se for hademnity against his vendor : La. 85G-868. Art. 217. Walls. § 2170. Party-Walls ; Erection. In a few states, every person who shall erect, in a city or town, any building with brick (or stone, in Louisiana), may set half his partition wall on his next neighbor's ground: lo. 2019; S.C. 1842; Miss. 980; La. 675; D.C. 482. § 2171. Dimensions, etc. The person erecting the wall must (1) leave a toothing in the corner of such wall for his neighbor to adjoin unto : S.C. 1842. (2) The wall must not exceed eighteen inches in width, and not be less than one story high : lo. 2019 ; La. 675. In several states, there are special provisions relating to party-walls in certain cities: Pa. Parti/- Walls, 1-27 ; DeL 73,74; D.C. 482,483; and there are in many states special laws upon the subject. Every co-proprietor is at liberty to increase the height of the wall held in common ; but he alone is to be at the expense of raising it, and of repairing and keeping the part above the height of the wall in common in good order; and besides, he alone isliable for all expenses arising from its being raised higher according to its value: lo. 2024; La. 681. If the wall held in common cannot support the additional weight of raising it, he who wishes to have it made higher is bound to rebuild it anew entirely, at his own expense ; and the addi- tional thickness must be taken from his property : lo. 2025 ; La. 682. § 2172. Contribution. The person erecting it cannot, in two states, compel his neighbor to contribute thereto : lo. 2019 ; La. 675. And the neighbor may of course contribute his half if he choose, at any time : lo. ; La. 676. 326 FIXTURES AND INCORPOREAL RIGHTS. But in several, when the owner of such adjoining land shall build, he shall pay for one half of the said partition wall, so far as he makes use of the same : lo. 2027 ; S.C. 1843 ; Miss. 980,981 ; La. 684. If the wall is built entirely on land of the person erecting, the neighbor wishing to use it must also pay half the value of such land : lo.. La. The neighbor who did not contribute to the raising of the wall held in common may cause the raised part to become common, by paying one half the expense of such raising, and the value of the half of the soil employed for the additional thickness, if there is any : lo. 202G ; La. 683. § 2173 Ownership. Whenever the neighbor pays his share, according to $ 2171 , the wall is owned in common between them : lo. 2020 ; La. 676. Presumption. Every wall being a separation between buildings, is presumed to be a wall in common : lo. 2021 ; La. 677. Removal. A party-wall so paid for by both owners (§ 2172) cannot be removed by either without the other's consent : Miss. 983. § 2174. Repairs. A land-owner making excavations is bound, if given the necessary license to enter on his neighbor's land, to preserve the wall or party-wall from injury at his expense: N.J. Party-Walls, 1. The repairs and building of walls in common are to be made at the expense of all who have a right to the same, and in proportion to their interests therein ; nevertheless, every co- proprietor of a wall in common may be exonerated from contributing to the repairs and rebuilding, by giving up his right of common, provided no building belonging to him be actually supported by the wall thus held in common : lo. 2022 ; La. 678-9. § 2175. Rights in "Walls. Every co-proprietor may build against a wall held in com- mon, and cause beams or joists to be placed therein: lo. 2023; La. 680 ; wdthin two inches of the whole thickness of the wall, saving to the neighbor the right of diminishing with the chisel the length of the beam tiU it do not exceed the half of the thickness of the wall, in case he himself should wish to fix beams in the same place, or to build a chimney against it : La. So, in Iowa, any person buQding such wall shall, on being requested by his co-proprietor, make the necessary flues and leave the necessary bearings for the joists or beams as specified by the co-proprietor : lo. Neither of the two neighbors can make any cavity within the body of the wall held by them in common, nor can he affix to it any work without the consent of the other, or without having, on his refusal, caused the necessary precaution to be used, so that the new work be not an injury to the rights of the other, to be ascertained by persons skilled in building : lo. 2028 ; La. 685. § 2176. Double Walls. He who wishes to dig a well or a necessary, to build a chimney or heartli, a forge, an oven, a furnace or stable, to put up shelves to store salt or other cor- rosive substances near a wall, whether held in common or not, is bound to leave the dis- tance, and to cause to be made the works prescribed by the regulations of the police, in order that his neighbor be not injured thereby. And if there be no regulations of police upon all or any of these subjects, he shall conform to the following rules, in cases which have not been foreseen. He who wishes to build a chimney or hearth against a wall held in common, is bound to make a double wall of brick or other proper material six inches thick. lie who wishes to build an oven, a forge, or a furnace against the wall held in common, is bound to leave half a foot interval and vacancy betwixt such wall and that of his oven, forge, or furnace ; and this last wall must be one foot thick. He who wishes to dig a necessary or a well against a wall, whether held in common or nf)t, is bound to build another wall one foot thick; and when there is a w-ell on one side and a necessary on the other, there shall be four feet masonry betwixt the two, including the thickness on both sides ; but between two wells three feet intei'val are sufficient : La. 692-5. § 2177. Express Agreement. Any agreements for erecting walls which parties may make who own adjoining lots and desire to build party-walls are bindinc; (1) whether in writing or not : Miss. 979. But in Iowa, (2) they must be in writing : lo. 2030. FENCES. 327 Art. 218. Fences. § 2180. Enclosures. All fields or enclosures must be enclosed by a legal (§ 2188) fence : Ct. 16,3,1,1 ; Kau. 40,1 ; Mo. 5651 ; Ark. 3646; Ore. 15,1 ; 1878, p. 23 ; Miss. 971. So, every gardener, farmer, and planter is required to enclose with a lawful fence his cleared land in cultivation: N.C. 2799; Tenn. 2248 ; Tex. 2431 ; Ariz. 1885,82,1. It being impracticable for all fields to be fenced in, all animals must be kept under a shep- herd, so that no injury may result to the fields ; and damages resulting must be paid by the person causing it: N.M. 3. In Utah, any county may by two-thirds vote declare in favor of fencing ; and in such case stock may be allowed to run at large, and the owner will in no case be responsible for damages : Uta. 398. Stock cannot run at large in the summer: N.M. 1880,27,1. In several states, any county or township may vote to prohibit cattle, sheep, and horses from running at large : KJ. 1881,12 ; W.Va. 1885,45 ; Ark. 3636 ; Ga. 1450, 1455. lu Indiana, it may be so ordered by the county commissioners : Ind. 4835. Every fence which separates rural estates is considered as a boundary enclosure, unless there be but one of the estates enclosed, or there be some other title or proof to the contrary : La. 638. § 2181. Fences in Towns. The subsequent provisions of this article do not, in Maine, apply to house-lots not exceeding one half acre, but if the owner oi' such lot improves it the adjacent owner must make and maintain half the fence, whether he improves or not : Me. 22,14. No ditch can be made adjacent to a house-lot without the consent of the owner of the house: Ct. 16,3,1,1. When there is a dwelling-house within one hundred rods of the divid- ing line, the owner of such house may erect a better fence than is legally prescribed (§ 2188) and the other proprietor is bound to pay only the cost of an ordinary legal fence towards the same, and not the increased expense of maintaining it: Ct. 16,3,1,12. Cities [and towns] have special power to regulate fences, partition fences, etc., by ordinance : N.J. 1878,222; La. 686. The owner of a lot in a city, town, or \allage has a process in court to compel the adjacent owner to erect and maintain his share of a partition fence : Minn. 18,25. Every wall betwixt the yard and garden in the cities and towns, and their suburbs, of this State, and even any other enclosure in the fields, shall be presumed to be in common, if there be no title, proof, or mark to the contrary : La. G77. There are special laws relating to fences in Philadelpliia: Pa. Fences, 11-16; in Amadoi*, Butte, Colusa, Contra Costa, Klamath, Mo- doc, Placer, San Bernardino, San Diego, Santa Barbara, Shasta, Siskiyou, Tehama, Trinity, Tuolumne, and Yuba Counties: Cal. 15306; in Wilmington : Del. 73,74 and 76; in Gallatin County : Ky. 1884,667 ; and in many states, private or local statutes. So, in Maryland, all fences are provided for by local or special laws. § 2182. Erection, (a) Generally, owners (or occupants) " of adjoining land, when either needs a fence, are each bound to erect half of it, or to contribute equally thereto : KH. 142,1 ; Mass. 36,10 ; Ct. 16,3,1,1 ; N.J. Feyices, 2 and 4 ; Ind. 4848 ; Cal. 15313 ; Ore. 1880, p. 46 ; Wash. 2492 ; Mon. 1881, p. 47, §§ 2,4 ; Ariz. 3370. So, in others, only when both owners' land is improved : R.I. 106,3 ; N.Y. 1,11,4,30 ; Pa. Fences, 5 ; Mich. 797 ; Wis. 1391 ; lo. 1489 ; Minn. 18,3 ; Kan. 40.8 and 17 ; Del. 57,4 ; W.Va. 105,6 ; Col. 1885, p. 221, § 4; Ala. 1592 ; Miss. 971. When they disagree the proportion is determined by the fence-viewers : Me. 22.9 ; 0. 4242 ; 111. 54,5 ; Mich. 800 ; Wis. 1393 ; lo. 1492 ; Minn. 18,6 ; Kan. 40,11 ; Neb. 1,2,2,4 ; Del. 57,3 ; Nev. 1875,92,2. So, in Vermont, either is bound to erect his portion, if the selectmen so determine : Vt. 3179. 328 FIXTURES AND INCORPOREAL RIGHTS. (b) So, iu other states; but no person not wishing his land enclosed, and not occupying or using it otherwise than in common, is compelled to erect or con- tribute to' any partition fence : N.Y. 1,11,4,31 ; 111. 54,3 ; lo. 1495 ; Minn. 8L20 ; Kan. 40,16 ; Neb. 1,2,2,2 ; W.Va. 105,4 ; N.C. 2800 ; Teun. 2259 ; Cal. 5841 ; Dak. Civ. C. 272 ; Uta. 401 ; La. 687. But when any fence is erected by a person on the boundary line of his land, and the person owning the land adjoining thereto afterwards enclose his land, so that such fence is used by him, he shall pay to the person owning it half value of so much of it as serves for a partition fence between them : KH. 142,10 ; Mass. 36.7 and 13; Me. 22,5 and 11 ; Vt. 3180 ; E.I. 106,4 and 10 ; Ct. 13,6,1,2 ; N.Y. 1,11,4,32 ; Pa. ; 0. 4239 ; Ind. 4853 ; 111. 54,4 ; Mich. 802 and 809 ; Wis. 1398-9 ; lo. 1498 ; Minn. 18,9 and 16 ; Kan. 40,16 and 20 ; Neb. 1,2,2,3 ; Del. 57,4 ; W.Va. 105,5 ; KC. 2801 ; Tenn. 2259 ; Mo. 5656 ; Ark. 3654; Cal. 15312 ; Ore. 15.8 ; 1880, p. 46; Nev. 1875,921 ; Coh 1460 ; Wash. 2491 ; Ida. 1884-5, p. 118, § 1 ; Mon. 1881, p. 47, § 3 ; Ala. ; Miss. 973; Ariz. 1885,82,6. But a man may erect a fence of his own and leave a lane on his own land between them : Ind. 4855; Miss. 971. If after notice and reasonable time the other party neglect so to erect one half of the fence, the first party may erect it and collect half cost from the other : N.J. ; 0. 4243 ; Kan. 40,17 and 12 ; Neb. 1,2,2,9 ; N.C. 2807 ; Cal. ; Wash. 2493 ; Mon. ; Miss. 972 ; Ariz. And also one per cent a month interest ; Mich., Wis., lo., Minn., Kan. ; and actual damages : Mon. In some, he may collect double the whole cost of fence or repairing from the other land-owner: Mich. 801 ; Wis. 1396,1397 ; lo. 1493 ; Minn. 18,5 and 7. Note. — " The actual occupant of land is deemed the owner for any purposes of this chapter : N.H. 142,19. § 2183. Ownership. When the partition fence is paid for by both, as in $ 2181, it is owned by both land-owners in common: Miss. 975. § 2184. Removal, (a) Neither party can generally remove his part of the partition fence : N.H. 142,12 ; Ct. 16,3,1,8 ; NY. 1,11,4,-39-40 ; N.J. i^r/ices, 6 ; 0. 4241 ; Ind. 4856 ; III. 54,3 ; Mich. 813 ; Wis. 1400 ; Kan. 40,19 ; Neb. 1,2,2, 10 ; N.C. 2802 ; Ky. 55,2,1 ; Mo. 5662 ; Ore. 15,11 ; CoL 1885, p. 222, § 8 ; Wash. 2496 ; Ida. 1884-5, p. 118, § 4 ; Mon. 1881, p. 47, § 5 ; Wy. 51,2 ; Miss. 975. Except (1) with the consent of the other, in all states, and (2) except between De- cember 1 and the March 1 following : Ky. ; November 1 and April 1 : N.Y. ; Decem- ber 1 and April 1 : Neb. ; January 1 and March 1 : N.C. ; (3) except upon written notice, viz., three months' notice : Ct. ; N.C. ; Ky. 55,2,2 ; Wash. ; six months' : O. ; Ind. ; Mich. ; Wis. ; Kan. ; Mo. ; Ore. 15,15 ; Ida. ib. 8 ; Mon. ; Miss. 977 ; one year's : N.J., 111., Col., Wy. ; ten days' : N.Y. ; sixty days' : Neb., Ore., Ida. Such notice nuist be served between July 1 and October 1 : Kan. (B) Neither party can remove the fence if the other will pay half its value : Mass. 36,12; Me. 22,10; Ct. ; 111. 54,14; Mich. 808; Wis. ; Minn. 18,15 and 20; Kan. 40, 18 ; Mo. ; Ore. ; Col. ; Wash. ; Ida. ; Mon. ; Miss. 978. (C) Nor while the other has a crop standing : Ind. 4858 ; Ore. 15,11. A person throwing his enclosure open is bound first to erect such fence as he would be bound to erect if it were not so thrown open : Ct. 1881,73. But in Ariz(jna, either party may remove " when the fence ceases to be a partition fence by the removal of the outside enclosure : " Ariz. 3370. § 2185. Repairs. Both owners are usually bound to contribute equally to the repairs of such partition fence: N.H. 142,1 ; Mass. 36,2 ; Me. 22,3 ; Vt. 3184 ; K.I. 106,5 ; Ct. 16,3,1,4 ; N.Y. 1,11,4,37 ; N.J. Fences, 2 ; 0. 4240 ; 111. 52,5 ; FENCES. 329 Mich. 797; Wis. 1391 ; To. 1489 ; Minn. 18,4; Kan. 40,8 ; Neb. 1,2,2,2; Del. 57.5 ; Ky. 55,2,4 ; Tenn. 2260 ; Mo. 5659,5661 ; Ark. 3193 ; Cal. 15315 ; Ore. 15,9 ; Col. 1885, p. 221, § 5 ; Wash. 2494; Ida. 1884-5, p. 118, § 2 ; Wy. 51,2 ; Uta. 401 ; Ala. 1592; Miss. 971 ; Ariz. 1885, 82,6. If part owner of division fence fail, after notice, to repair, the other may proceed to repair, and recover value of repairs from the recusant : N.H. 142,7 ; Mass. 36,3-4 ; Vt. ; N.Y. 1,11,4,38 ; N.J. Fences, 2 ; Pa. Fences, 7 ; Ind. 4849,4850 ; 111. 54,G and 11 ; lo. 1490-1 ; Kan. 40,9-10 ; Xeb. 1,2,2,9 and 13 ; N.C. 2807 ; Ky. ; Cal. 15319 ; Ore. 15,10 ; Col. ; Ida. ib. 3 ; Mon. 1881, p. 47, § G ; Ala." 159G ; Miss. 974; Ariz. 1885,82,6 ; plus ten per cent interest : Ind. ; /)^ms twenty-five per cent damages : Cal. ; and any actual damages suffered by such neglect : 111., Mon. ; plus one per cent a month interest : Me., R.I., Mich., lo., Minn., Kan.; plus double value of repairs : N.H. 142,9; Mass.; Me. 22,4 and G ; R.I. 106,6 ; Ct. ; Mich. 798-9 ; Wis. 1396 ; Minn. 18,4-5 ; Del. ; Mo. 5661. All fences must, in most states, be kept in good repair through the year, unless there is a mutual agreement to the contrary : Mass. 36,8 ; Me. 22,7; R.I. 106,2; Ind. 4848 ; Mich. 803; Wis.; lo. 1494; Minn. 18,10; Kan. 40,15; Cal. 15318; Mon. 1881, p. 47, § 2. But if either party ceases to use or improve his land as an enclosure, he is not bound to repair the fence, so long as his land lies unimproved and in common : N.H. 142,12 ; Mass. 36,11 ; Me. 22,2 and 13 ; Ct. 1881,73 ; Mich. ; Wis. ; Cal. ; Col. ; Miss. Note. — " Only when such fence has been established by mutual agreement. § 2186. Maintenance. A division fence existing, each person must keep a lawful fence on his portion of the line : Mass. 36,2 ; Me. 22,2 ; Vt. 3179 ; R.I. 106,3-4 ; N.Y. 1,11,4,30 ; N.J. ; Pa. Fences, 5; 0. 4240; Ind. 4848 ; Mich. 797 ; Wis. 1391 ; lo. 1489; Minn. 18,3; Neb. 1,2,2,2 ; DeL 57,4; W.Va. 105,4 ; Ky. 55,2,3 ; Cal. 15318 ; Col. 1885, p. 222, § 6 ; Mon. 1881, p. 47, § 2. § 2187. Express Agreement. Persons owning adjoining lands may agree in regard to the erection of division fences and repairs (and if written, and [except in New Jersey, signed and acknowledged or proved] it may be recorded like deeds and with same effect : N.H. ; Mass. ; Me. ; Vt. ; R.I. 5 N.J. Fences, 10 ; Wis. ; lo. ; Minn. ; Kan. ; Ky.) : N.H. 142,2 ; Mass. 36,11 ; Me. 22,5 and 13; Vt. 3190; R.I. 106,9; N.J. Fences, 7 ; Wis. 1392 ; lo. 1499 ; Minn. 18,8; Kan. 40,13 ; Ky. 55,3,1 ; Uta. 401. If there is a disagreement, an appeal to fence-viewers is had, who assign each a part of fence to keep up : N.H. 142,4 ; Mass. 36,5 ; Me. 22,5 ; Vt. 3179 ; R.I. 10G,8 ; Ct. 16,3,1,2-3 and 6-7 ; N.Y. 1,11,4,32-33 ; N.J. Fences, 4 ; Pa. Fences, G; L). 1492; Kan. 40,11 ; Neb. 1,2,2,5 ; remedies and damages as above (^ 2185) : Mass. 36,6 ; Kan. 40,12. The decision of the selectmen or fence-viewers is recorded in the same way: N.H.; Mass. ; Me. ; Vt. ; R.I. ; Ct. ; N.Y. 1,11,4,.36; N.J. ; III 54,10 ; Mich. 800 ; Wis. 1403; To. ; Minn. 18,8 ; Kan. ; Neb. 1,2,2,8 ; W.Va. 105,9 ; N.C. 2805. Such agreement will then be binding on the parties and all succeeding owners and occupants of the land: N.H. ; R.I. ; Wis. ; lo. ; Minn. 18,19; Kan. ; N.C. 2806; (and so also, it would probably be inferred, in other states). Such division of the fencing may also be established by usage and acquiescence of the par- ties and those under whom they claim, for twenty years : N.H. 142,3. § 2188. Lawful Pence. Nearly all states prescribe by law the height, construc- tion, and material required for a " lawful fence." It is generally four or four and one half feet high, with three rails, and may be of stone, wood, wire, or a bank and ditch. See N.H. 142,5 ; Mass. 36,1 ; Me. 22,1 ; Vt. 3178 ; R.I. 106,1 ; Ct. 16,3,1,1 ; KJ. Fences, 1 ; 1883,65 ; Pa. Fences, 1 ; 111. 54,2 ; Mich. 796 ; Wis. 1390, Amt.; lo. 1507; Minn. 18,1-2; Kan. 1883,113,1; 40,1-3; Neb. 1,2,2,18; Del. 57,1 ; Ya. 97,1 ; W.Va. 105,1 ; 1883,32 ; Kv. 55,1,1 ; 1882,878 ; Tenn. 2249- 2250; Mo. 5652; Ark. 3643,3647,3649; Tex. 2431; Cal. 15308-15311; Vol. 3, 330 FIXTURES AND INCORPOREAL RIGHTS. 15321 ; Ore. 1878, p. 23 ; Col. 1885, p. 220, § 1 ; Wash. 2488 ; Ida. 1874-5, p. 831, 2-8 ; 1880-1, p. 306,1 ; 1884-5, p. 129 ; Mon. 1885, p. 76, § 1 ; Wy. 51,1 and 9 ; 1882,46; Uta. 399; Ga. 1443-4a; 1883, p. 139, §§ 1,2 ; Ala. 1586 ; 1879,73; Miss. 970; ria. 105,1 ; 1885,3619 ; KM. 1278 ; Ariz. 1885,82,2. In some, each town has power to prescribe what shall be a lawful fence therein : N.Y. 1, 11 4,44 ; 111. In others, there is no prescribed construction ; but it must be such as husband- men generally keep : 0. 4239 ; Ind. 4834. § 2189. Damages by Cattle breaking through, (A) if the cattle are not the prop- erty of the owner of the fence, and the damage is done on his land, and the fence was lawful, (1) must be paid to him by the owner of the cattle : Mass. 36,27 ; Me. 23,4; R.I. 109,1; Ct. 16,3,1,9; N.Y. 3,8,11,3-4; KJ. Fences, 12; O. 4251 ; Ind. 4835 ; 111. 54,20 ; Neb. 1,2,2,19 ; Del. 57,2 ; Va. 97,8 ; 1879, Special Session, 31; W.Va. 105,2; Ky. 1882,1053; Tenn. 2252; Mo. 5653 ; Ark. 3651; Tex. 2432 ; Ore. 15,4; Nev. 3992 ; Col. 1885, p. 221, § 3 ; Wash. 2490; Ida. ih. 9,10 and 12; Mon. 1881, p. 48, § 7 ; Wy. 51,3 and 7 ; Uta. 399 ; Ala. 1589 ; Miss. 975, 984; N.M. 1277; Ariz. 1885,86,4. But (2) if the fence was not lawful and sufficient, he cannot recover : N.H. 142,13; Mass.; Me.;Vt. 3188; Ct.« 16,3,1,10; N.Y. 1,11,44; 1^. J. Fences, 10 ; Ind. 4847 ; Mich. 817 ; Wis. 1391, Arnt. ; Kan. 40,26; Tenn. 2253 ; Tex. -2434; Col. ; Wy. ; Uta. 401 ; Ga. 1445 ; Ala. 1587; Fla. 105,2 ; 1885,3619. And in one state, he is liable for damage done by him to such cattle in chasing them out : Pa. Fences, 1. But (3) he can recover, whether there is a lawful fence or not, except in coun- ties adopting the fence law (§2190) : Ind. 4835 ; Uta. 396 ; S.C. 1185. And, also, he may distrain the cattle : Mass., Me., Ky.,* Mo. ; or impound them : KI. ; N.J. ; Ind. ; 111. 54,21 ; Kan. 40,33 ; Md. 67,8,7 ; Ida. ; Mon. ih. 8. [So, in many other states, by the law of Estrays.'] (b) If the cattle belonged to the owner of the fence, and the damage was done on another's land, the owner of the cattle is liable, if he did not keep up a lawful fence; otherwise, not : N.H. 142,13 ; E.I. 109,18 ; N.Y. 1838,261; 0. 4250 ; Ind. 4847; Kan. 40,26; Ky. 55,3,2; 55,4,1; Tex. 2432; Ida. 1874-5, p. 742,1; Uta. 401. Except, he is liable for a second breach, whether his fence be lawful or not : Ky. (C) Any person not maintaining a lawful fence is liable in the same way, although not the owner of the cattle : N.J. Fences, 9 ; O. ; Kan. Cattle, as the word is used in this section, is specially enacted to include hogs : Ariz. 3372. So, in many other states. For second or subsequent breaches, the fence being lawful, the owner of the cattle must pay double damages: Del.,'' Va., W.Va., Ark., Ore., Nev., Ida., Ala., Miss., Ariz. J3ut for a third breach by cattle of the same owner the owner of the land (1) may distrain : Ore. ; or (2) he may sue for treble damages : Ky. ; (3) he is entitled to the cattle : Va.,* W.Va. ; * (4) he may kill them : Ark. Notes. — » Except in particular cases, as where the cattle were unruly, or the trespass voluntary, etc. '' After notice to the owner of tlie cattle. § 2190. Local Laws. In many states (A) the fence law contained in this article only applies to each county upon (1) a majority vote therein : lo. 1508; Va. 97,19 and 23 ; N.C. 2812 ; Col. I4G9-U70 ; (2) a two-thirds vote therein : Uta. 398. In Nebraska, it does not apply to those counties where cattle are not prohibited from running at large : Neb. 1,2,2,22. In several, it does not apply in certain specified counties : Va. 97,20-22 ; Cal. 15310 ; Ore. 15,7 ; Col. 1885, p. 222, § 9 ; Wy. p. 351, § 1 ; S.C. 1184 ; Ariz. 3373. In Georgia, it does not apply in counties which vote for no fence law : Ga. 1455. WAYS. 331 (B) And iu Utah, two thirds of the settlers in any region may petition the county court setting forth that it is bettor adapted to grazing than to agriculture, and if the court so decide, § 2189, A (3) does not apply, and no damages can be recovered : Uta. 397. (C) In one, there are laws requiring fencing in specified districts only : N.M. 1278. Compare also § 2181. § 2191. Ditches. A ditch held in common is to be kept at the expense of the two con- tiguous proprietors : La. 690. Every ditch between two estates shall be supposed held in common, unless there be a voucher or proof to the contrary : La. 689. § 2192. Trees. Every proprietor in the cities, towns, or suburbs of this State is forbidden to plant on the boundary line which separates his estate from that of his neighbor trees which may be of any injury whatsoever to his neighbor. And if his neighbor suffers any damage from them, he can oblige the O'vvner to have them torn up or the branches of them cut off which extend over his estate. If the roots only extend themselves on his estate, the neighbor has the right to cut them up hhnself : La. 691. Art. 220. Ways. § 2200. Right of Way. The right of passage, or of way, is a servitude imposed by law or by conveuticin, and by virtue of which one has a right to pass on foot, on horseback, or in a vehicle, to drive beasts of burden or carts through the estate of another. When this servitude results from the law, the exercise of it is confined to the wants of the person who has it. When it is the result of a contract, its extent and the mode of using it is regulated by the contract : La. 702. § 2201. "Ways of Necessity. The owner whose estate is enclosed, and who has no way to the public road, may claim the right of passage on the estate of his neighbors for the culti- vation of his estate ; but he is bound to indemnify them in proportion to the damage he may occasion. The owner of the estate which is surrounded by other lands has no right to exact the right of passage from which of his neighbors he chooses. The passage shall be generally taken on the side where the distance is the shortest from the enclosed estate to the public road. Nevertheless, it shall be fixed in the place the least injurious to the person on whose estate the passage is granted. It is not always the owner of the land which affords the shortest passage who is obliged to suffer the right of passage ; for if the estate for wliich the right of passage is claimed has be- come enclosed by means of sale, exchange, or partition, the vendor, coparcener, or other owner of the land reserved, and upon wliich the right of passage was before exercised, is bound to furnish the purchaser or owner of the land enclosed with a passage gratuitously, and even when it has not been sold or transferred with the rights of servitude. A passage must be furnished to the owner of the land surrounded by otlier lands, not only for himself and workmen, but for his animals, carts, instruments of agriculture, and everything which may be necessary for the use and working of his land. When the place for the passage is once fixed, he to whom this servitude has been granted cannot change it, but he who owes this servitude may change it from one place to another, in order that it may be less inconvfuient to him, provided that it afford the same facility to the owner of the servitude : La. 699-703. § 2202. Roads. Roads are of two kinds, public aud private. Public roads are those which are made use of as highways, which are generally furnished and kept up by owners of estates adjacent to them. Private roads are those which are only opened for the benefit of certain individuals to go from and to their homes, for the service of their lauds, and for the use of some estate exclusively. 332 FIXTURES AND INCORPOREAL RIGHTS. He who from his title as owner is bound to give a pul>lio road on the border of a river or stream must furnish another without any compensation, if the first be destroyed or carried away. And if the road be so injured or inundated by the water, without being carried away, that it becomes impassable, the owner is obliged to give the public a passage on his land, as near as possible to the public road, without recompense therefor. The action of indemnification granted against the person who claims the passage may be barred by prescription, and the passage shall be continued, although the action in indemnifica- tion may be no longer maintainable : La. 704-8. § 2203. Passage. The right of passage in cities is a servitude by which an ovnier per- "niits his neighbor to pass through his house or lot to arrive at his own. This servitude, to be perpetual, must be so expressed in the title ; otherwise it ceases with the person who enjoys it and does not pass to his heirs : La. 719. If the title by which a passage is granted does not designate its breadth, nor the manner in which it is to be used, whether on foot, or horseback, or with carriages, the use which the per- son to whom the servitude is granted previously made of it will serve to interpret the title. If there was no such use made of it before, the probable intention of the parties must be considered, and the purpose for which the passage is granted. If these circumstances can afford no light, it must be decided in favor of the land which owes the servitude, and a foot-passage must be conceded eight feet wide, where it is straight, and ten feet wide where it turns. If the passage be agreed upon, without the time or the hour be fixed, it is necessary to make a distinction : if the passage be through a place not closed, it may be used at any hour, and even in the night, for at any hour a person may want to pass ; but if it be through a place which is closed for the security of the owner, the right of passage can be exercised only at con- venient hours, for it would be unreasonable that a yard or house should be left open at all hours of the night : La. 780-1. § 2204. Footways. In two states, no right of footway, except claimed in connection with a right to pass with carriages, shall be acquired by prescription or adverse use for any length of time : R.I. 175,6 ; lo. 2033. In New Mexico, " all footpaths are prohibited under penalty : " N.M. G. L. 1880,1,1,2. § 2205. The Public Easement. By taking or accepting land for a highway, the public acquire only the right of way "and tlie incidents necessary to enjoying and maintaining it, sub- ject to the regulations in the code : Cal. 2631. All trees within the highway, except only such as are requisite to make or repair the road or bridges, are for the use of the owner or occupant of the land : Cal." Note. — « Except in certain specified counties. § 2206. Rights of Abutters. The owner or occupant of land (1) may construct a side- walk on the highway along the line of his land: Cal. 2632 ; (2) may plant trees on the side near his land : Cal. 2633. (3) He is presumed to own to the centre of the way, but the con- trary may be shown : Cal. 5831 ; Dak. Civ. C. 267 ; La. Art. 225. Miscellaneous Easements. § 2250. Note. See $$ 2148,2150-1, fur the various kinds allowed. § 2251. Support. In two states, no owner or tenant of coal land can open or sink any mine or shaft within five feet of the land of another person without such person's written con- sent: Va. 120,7; W.Va. 144,7. The right of support is one by which a proprietor stipulates that his neighbor shall be bound to permit that his house or his timbers should rest on the wall of his neighbor. In these servitudes the owner of the structure subject to them is bound to keep his wall in a condition to bear them, unless the contrary has been agreed upon; but he may relieve him- self from this charge by abandoning his wall. The servitude by which one is permitted to project works over the estate of his neighbor is of the same kind : La. 712. MISCELLANEOUS EASEMENTS. 333 § 2252. Every owner is bound so to construct his roofs that the rain falling on them shall not fall on the land of his neighbor, but on his own or the public way. This falling of water gives rise to the servitude of drip. The servitude of drip is that by which any one engages to permit the waters from the roof of his neighbor to fall on his estate, or that by which any one obliges himself to suffer the waters from his own roof to fall on the estate of his neighbor : La. 698,713. § 2253. Drainage. The right of drain consists in the servitude of passing water col- lected in pipes or canals thn)Ugh the estate of one's neighbor. This servitude is different from the right of drip, because the charge it imposes is more onerous. It is much less inconvenient to receive the rain which falls than a body of water which may" carry away the land by its violence. The contrary servitude is the right of preventing this passage of water : La. 714. Drains in Swamps. In most states, persons having swamp lands or lands needing drainage have a compulsory process for the right to cut drains through lands surrounding : KH. 1883,108,1 ; Mass. 189,1-18 ; Me. 22,43-61 ; 16,17- 22 ; Vt. 3225-3238 ; E.I. 69,1-5 ; Ct. 16,12,1,8-10 ; N.Y. 3,8,16,1-14 ; N.J. Meadows, 1 and 48 ; and 68 and 98 ; 1881,158 ; 1883,188 ; Pa. Agriculture, 1 ; O. 4447,4511,1881, p. 209 ; Ind. 4274; 1883,126 ; 111. 42,2 and 51 ; Wis. 1359 ; lo. 1208 and 1217 ; 1884,188 ; Minn. 124,49 ; 1883,108 ; Kan. 34,2 ; Neb. 1,89, 1 and 4 ; Md. 22,101 ; Del. V. 13, C. 444,1 ; Va. 120,13 ; W.Va. 144,10 ; N.C. 1297 ; Tenn. 2980-1 ; Mo. 5415-6 ; 6207 ; Cal. § 6422, April 1,1872 ; V. 3, §15144; 1885,158; Ore. 11,1; Nev. 3852; Col. 1102; Wash. 1883, p. 77 ; Dak. 1883,75; Wy. 1882,57 ; S.C. 1562 ; Ga. 1607; Fla. 135,1 ; KM. 17. There are provisions for drainage, ditches, irrigation, or other similar work, in many states, enabling drainage, etc., companies to enter upon and use the land of others for such purposes : Ct. 16,12,2 ; N.J. 1880,163 ; 111. Ch. 42 ; Mich. 1691- 1740 ; lo. 1884,186 ; Kan. Ch. 34 ; Neb. 1,89, Art. 2 ; N.C. 1315 ; Ark. 4038- 4055 ; Cal. ; Nev. 3852-3 ; Ida. 1874-5, p. 829,1-2 ; 1876-7, p. 34,1-2 ; 1880-1, p. 269,11. See also § 1179. Damages must be paid for such use : N.H. ib. 5 ; IMass. 189,14 ; Me. 22,56 ; 17,23 ; Vt. 3229 ; R.I. 69,3 ; Ct. 16,12,1,9 ; N.J. Meadows, 5 and 52 and 69 and 99 and 117 ; Pa. Agriculture, 6 ; 0. 4518-4521 ; Ind. 4277 ; 1883,126 ; 111. 42,17 and 56 ; Mich. 1703 ; Wis. 1368 ; lo. 1209 and 1222 ; Minn. 124,54 ; Kan. 34,3 ; Neb. 1,89,12 ; Md. 22,107 ; Del V. 13, C. 444,3 ; Va. 120,14 ; W.Va. ; N.C. 1299 and 1321 ; Tenn. 2982 ; Mo. ; Ore. 11,3 ; Nev. 3853 ; Col. 1117 ; Dak. ; Ida. ib. 3 and 6 ; Wy. ; S.C. 1563 ; Ga. ; Fla. 135,4 ; N.M. § 2254. Light and Air. One neighbor cannot, without the consent of the other, open any window or aperture through the wall held in common in any matter wha'tever, not even with the obligation, on his part, to confine himself to lights, the frames of which shall be so fixed within the wall that they cannot be opened. No one shall build galleries, balconies, or other projections on the border of an estate so that they extend beyftnd the boundary-line which separates it from the adjoining estates : La. 696-7. We understand by view every opening which may, more or less, facilitate the means of looking out of a building. Lights are those openings which are made rather for the admission of light than to look out of. Servitudes of view are of two kinds, — one which confers the right of full view with the power of preventing one's neighbor from raising any buildings which obstruct it ; and the other, which gives an owner the right of preventing his neighbor from having any view or lights on the side on which their estates unite, or that he exercise these servitudes according to hia title. 334 FIXTURES AND INCORPOREAL RIGHTS. Servitudes of light are also of two kinds, — one wliich gives the owner of a house the right of opening windows in a wall held in common, for the admission of light, with the right also of preventing his neighbor from raising any building which can obstruct the admission of light ; and the other, which gives the right of preventing one's neighbor from opening his wall or a wall held in common, for the admission of light from a yard or other place, or which limits him to certain lights which are conferred by his title. The right of obliging one's neighbor to raise his wall to a certain height, and, on the con- trary, that of preventing one's neighbor from raising his house beyond a certain height, are also servitudes : La. 715-718. The right of opening lights or of view, granted indefinitely to him who is about building, gives him the privilege of opening all the windows which may be necessary to light or em- bellish his house and the building attached to it, to give to the windows the form and size he may think proper to adopt, because such is presumed to have been the intention of the parties. But after the buildings are all finished, the possession and situation of the ground determine the extent of the servitude, and the owner can neither multiply nor enlarge his windows : La. 782. In several states, no person by erecting a honse or building with windows overlooking tbe land of another, and the continuance of such windows, can ac- quire an easement of light and air so as to prevent the erection of a building on such land : Mass. 122,1 ; E.I. 175,5 ; Ct. 18,6,1,19 ; lo. 2032 ; W.Va. 144,13. § 2255. Drawing "Water. The right of drawing water is a servitude by which one suffers his neighbor to draw water from the well or spring he has on his laud. The use of this servi- tude is confined to those who live in the house of the person enjoying the servitude, unless the contrary be expressed in the title. The right of drawing water from the spring of another is also a servitude. The right of watering one's animals at the pond or spring of another is also a servitude : La. 720,723,725. § 2256. Aqueducts. The conducting of water or aqueduct is the right by which one conducts water from his estate through the land of his neighbor by means of an aqueduct or ditch : La. 724. § 2257. Pasturage. Pasturage is the right of grazing one's cattle on the estate of another : La. 726. § 2258. Telegraph. In several states, no easement can be acquired by pre- scription in maintaining telegraph wires and poles : K.I. 175,10 ; Ct. 1881,42 ; N.J. 1884,163 ; Pa. 1883,11 ; Wis. 1885,57. Art. 228. Acquirement of Easements. § 2280. "Who may Acquire. Those who can establish servitudes on their lands can also acquire servitudes. There are some persons who cannot establish servitudes who nevertheless can acquire them ; such as those who cannot exercise their rights, — minors, women not authorized, administrators, tutors, husbands ; for the acquisition of a servitude augments the value and convenience of an estate. lie who assumes the quality of owner, and enjoys an estate as such in good or in bad faith, he who acts in the name of the owner, though he have no mandate from the owner, can acquire servitudes, and the person granting them cannot afterwards revoke them, for it is not to the person but to the estate they are granted. Nevertheless, in all the cases mentioned in the preceding articles, if the minor, the woman not authorized, or the owner find the contract onerous, they can annul it or refuse to execute it by renouncing the servitude. Even those who are neither owners nor representatives of the owner, and Avho have not ex- pressly assumed the quality of acting in his name, may acquire a servitude for the benefit of the estate they possess, when such is the condition of the contract they make. ACQUIREMENT OF EASEMENTS. 335 One of the owners of property held in common may stipulate for a servitude for the benefit of the property in common, because the partnership which exists between him and his co- proprietor authorizes him and makes it his duty to ameliorate the property in common. Nevertheless, the co-propri(!tors may refuse to avail themselves of this servitude, and allege that the acquisition of the servitude is not an act of mere administration but an innovation on the estate, which ought not to have been made without their consent. But this exception exists only in their favor and cannot be taken advantage of by him who has granted the servi- tude in order to exonerate himself from his engagement. The usufructuary may acquire a servitude in favor of an estate of which he has the usufruct if he declare that he acts for the owner, or if he stipulates that the servitude is established in favor of all those who shall possess the estate after him ; but if in the act by which the servi- tude is acquired he takes merely the quality of usufructuary, without expressing at the same time that he contracts for all those who may succeed him in the possession of the estate, the right terminates with the usufruct, and the owner cannot claim a servitude which has not attached to the estate subject to the usufruct, or which has only attached for the time of the usufruct : La. 759-764. Continuous and apparent servitudes may be acquired by title or by a possession of ten years. Continuous non-apparent servitudes and discontinuous servitudes, whether apparent or not, can be established only by a title. Immemorial possession itself is not sufficient to acquire them. Immemorial possession is that of which no man living has seen the beginning, and the ex- istence of which he has learned from his elders. Tlie destination made by the owner is equivalent to title with respect to continuous appar- ent servitudes. By destination is meant the relation established between two immovables by the owner of both which would constitute a servitude if the two immovables belong to two different owners. Such intention is never presumed till it has been proved that both estates, now divided, have belonged to the same owner, and that it was by him that the things have been placed in the situation from which the servitudes result. If the owner of two estates between which there exists an apparent sign of servitude sell one of those estates, and if the deed of sale be silent respecting the servitude, the same shall continue to exist actively or passively in ftivor of, or upon, the estate which has been sold. The title by wliich such servitudes are established as cannot be acquired by prescription, can be replaced only by a title by which such servitude is acknowledged by the owner of the estate which owes the servitude, or by a final judgment condemning him to permit the exer- cise of the servitude. When a servitude is established, everything which is necessary to use such servitude is supposed to be granted at the same time with the servitude. Thus, the servitude of drawing water out of a spring carries necessarily with it the right of passage. But the passage, in this case and in all others in which it is permitted as an acces- sory to some other servitude, must be made in the way the most direct, the shortest, and the least inconvenient to the estate subject to the servitude : La. 765-771. § 2281. Prescription. In a few states, no person can acquire by adverse use any easement upon or over the laud of another unless such use is continued uninterrupted (1) for twenty years : Mass. 122,2 ; Me. 105,13 ; Ind. 4321 ; (2) for fifteen years : Ct. 1881,161,1. See also in Part IV., Prescription. In Iowa, where title to easements is claimed by reason of adverse possession for ten years, or prescription, the use of the same shall not be admitted as evidence that tlie person claimed the easement as his right ; but the fact of adverse possession must be proved by evidence dis- tinct from and indei)endent of its use, and that the person against wliom the claim is made had express notice thereof; and these provisions apply as well to public as to private claims : lo. 2031. § 2282. Prescription in Public Ways. No owner of land adjoining a highway can, by fencing or enclosing any part of it, or occupying it adversely for any length of time, acquire any prescriptive right thereto as against the public : N.H. 76,8. 336 FIXTURES AND INCORPOREAL RIGHTS. In some states, the principal provision (§ 2281) is expressly extended (1) to rights of way : Mass. 122,2 ; Me. ; Ct. ; Ind. ; (2) to rights of air or light : Ind. No rio-ht of way can be acquired through unenclosed woodlaud : Pa. Ways, 1. A right of private way over another's laud may arise by express grant : Ga. 2235. Or from prescription, in the case of improved lands, by seven years' uninterrupted use : Ga. 731 ; 2235. In wild lands, by twenty years' uninterrupted use : Ga. And also, by implication of law, when such right is necessary to the enjoyment of lands granted by an owner of the servient estate : Ga. Art. 229. Extinguishment. See also § 2157. § 2290. Non-User. A right to servitude is extinguished by the non-usage of the same during ten years. The time of prescription for non-usage begins for discontinuous servitudes, from the day they cease to be used ; for continuous servitudes, from the day any act contrary to the servi- tude has been committed. Acts contrary to the servitude are the destruction of works necessary for its exercise ; as the stopping of spouts which caiTy oflf rain, or of windows or apertures which are necessary to the exercise of the right of view. If the owner of the estate to whom the servitude is due is prevented from using it by any obstacle which he can neither prevent nor remove, the prescription of non-usage does not run against him as long as this obstacle remains : La. 789-892. To preserve the right of servitude and prevent prescription from running against it, it is not necessary that it should be exercised exclusively by the owner to whom it is due, or by those who use his rights, or who represent him directly, — as the usufructuary, the lessee or tenant, the attorney in fact or agent. It suffices if the servitude has been exercised by workmen em- ployed by the owner, or by his friends, or those who come to see him. The servitude is preserved to the owner of the estate to which it is due, by the use which any one, even a stranger, makes of it, provided it be used as appertaining to the estate. Thus the servitude is preserved to the owner by the use which a possessor in bad faith, who is in possession of the estate to whom it is due, makes of the servitude. But if any one passes over the land of another, considering the way as public, or as belong- ing to another estate, the owner of the estate to whom the servitude is due cannot avail him- self of the use thus made of the servitude, to protect himself against the prescription which may have been acquired against himself Prescription for non-usage does not take place against natural or necessary servitudes, which originate from the situation of places. The mode of servitude is subject to prescription as well as the servitude itself, and in the same manner. By mode of servitude, in this case, is understood the manner of using the servitude, as is prescribed in § 2303. If he to whom a servitude is due enjoys a right more extensive than that which is given him by the act establishing the servitude, he will be considered as having preserved his right of servitude ; because the less is included in the greater. But he cannot thus prescribe for the surplus, and can be compelled to confine himself to the exercise of the servitude granted by his title, unless it be a continuous apparent servitude, which he has acquired by prescription. If, on the contrary, the owner has enjoyed a right less extensive than is given him by his title, the servitude, whatever be its nature, is reduced to that which is preserved by possession during the time necessary to establish prescription. If the owner has merely enjoyed an accessory right, which was necessary to his right of servitude, he will not be considered as having used his right of servitude. For example, if he who has the right of drawing water from the well of his neighbor has passed often through the land of the latter, and gone to the well without drawing any water during the time required for prescription, he will have lost his right of drawing water without acquiring that of passage, which was merely accessory to the right of drawing water. If the owner has used another servitude than that granted to him, without using the latter, he may lose this last for non-usage during the time required for prescription, without acquiring that which he has used, if it be a discontinuous or non-apparent servitude. EXTINGUISHMENT. 337 If the estate in whose favor the servitude is established belongs to several and has never been divided, the enjoyment of one bars prescription with respect to all. If among the co-proprietors there be one against whom prescription cannot run, as for instance a minor, he shall preserve the right of all the others. When the estate to which the servitude is due ceases to be undivided, by means of a partition, each of those who were the co- proprietors only preserves the servitude by the use he makes of it, and the others lose it by non-usage during the time required for prescription. If a servitude be due to several persons, but on different days, as the right of drawing water, he who does not exercise his right loses it, and the estate subject to the servitude becomes free from it, as respects him. When the prescription of non-usage is opposed to the owner of the estate to whom the ser- vitude is due, it is incumbent on him to prove that he, or some person in his name, has made use of this servitude as appertaining to his estate during the time necessary to prevent the establishment of the prescription : La. 793-804. § 2291. Confusion. Every servitude is extinguished, when the estate to which it is due, and the estate owing it, are united in the same hands. But it is necessary that the whole t)f the two estates should belong to the same owner ; for if the owner of one estate only acquires the other part or in common with another person, con- fusion does not take effect. If the union of the two estates be made only under a condition, or if it cease by legal eviction ; if the title be thus destroyed either by the happening of the condition or by legal eviction, the servitudes revive, which, in the mean time, will have been rather suspended than extinguished. Thus the exercise of redemption, the happening of the condition f>n which the estate termi- nates, the evictiim from a succession by a nearer heir, the abandonment c»r relinquishment of an estate on account of mortgages, will revive all the servitudes, active and passive. Confusion takes place by the simple acceptance of an inheritance, if there be but one heir. If the heir who has thus accepted an inheritance disposes of any estate behmging to the succession, which is subject to any servitude tow^ards his estate, without any stipulation for the preservation of his right of servitude, the estate thus alienated, wliich owed the servitude, remains free from it, in consequence of the confusion which had taken effect while tlie estate remained in his hands. But if the heir, under a simple acceptance, sell to a person the w^hole of his rights in the succession he has received, the sale prevents the confusion, and the estate belonging to the succession will continue to have the rights of servitude previously due to it, or be charged with the servitudes imposed upon it, in the same manner as if it had not passed through the hands of the heir, because in this case the purchaser is not presumed to have purchased more or less than all the ancestor possessed. Confusion does not take effect if the heir has only a temporary possession of the estate sub- ject to the servitude, or enjoys it for the purpose of delivering it to another person to whom it has been bequeathed, or when his right in it terminates at a certain fixed thne. If the heir has accepted the succession under benefit of inventory, the confusion does not take effect ; and if the heir is obliged to abandon the succession at the instance of the creditors, the servitudes resume their former state. The acquets, which the husband and wife make during the marriage, do not become con- fused with the private property of each ; and if these acquets are sold during the marriage, the servitudes, active and passive, which existed previous to their being acquired by the husband and wife, continue to exist without any stipulation to that effect. Except in the cases herein mentioned, and similar cases, services extinguished by confusion do not revive, except by a new contract ; with the exception of continuous and apparent servi- tudes, with respect to which the disposition made by the owner of both estates is equivalent to a title. The renunciation or abandonment of the land extinguishes the servitudes charged on it, of whatever nature they may be, because the owner of the estate to which the servitude is due is bound to accept the abandonment, which produces in his hand a confusion which puts an eud to the servitude. It is not necessary, to produce a discharge of the servitude, that the proprietor of the estate 22 338 FIXTURES AND INCORPOREAL RIGHTS. ■n-hich owes it should abandon the whole estate ; it suffices if he abandon the part on which the servitude is exercised. If a proprietor is bound to support a building or beams of his neighbor on a part of his wall, and to in;ike the repairs necessary to keep up this wall, he may discharge himself from this servitude by abandoning to the owner of the estate to whom the servitude is due, that part of his wall upon which this servitude is exercised : La. 805-815. § 2292. Release. Servitudes are also extinguished by the renunciation or voluntary re- lease of them by the owner of the estate to which they are due. This renunciation or release may be express or tacit. The express release must be made in writing, and is confined to what is clearly expressed in the act containing it, because one is not easily presumed to have renounced his right. Besides, the owner who makes the release must be capable of disposing of immovables ; this release of a servitude being a real alienation. When the estate to wliich the servitude is due belongs to several owners, one of them cannot make a release of the servitude so as to discharge the estate owing the servitude without the consent of his co-proprietors. But the release which he makes will deprive him from the right of personally using the servitude. The release of the servitude is tacit, when the owner of the estate to which it is due per- mits the owner of the estate charged with the servitude to build on it such works as presup- pose the annihilation of the right, because they prevent the exercise of it ; for example, if he should permit the field, through which he has a right to pass, to be closed by a wall. In order that the tacit release of the servitude be inferred from the permission which the owner of the estate to which it is due has given for the erection of works which prevent the exercise of it, it is necessary : — 1. That the permission of consent for the erection of these works should be given expressly, verbally, or in writing. Froin the mere sufterance of works contrary t(j the servitude, the release cannot be presumed, unless it has continued for a time necessary to establish prescription. 2. That the works thus constructed be of a permanent and solid kind, such as an edifice or walls, and that they present an absolute obstacle to every kind of exercise of the servitude : La. 816-820. § 2293. Termination. Servitudes are also extinguished when they have been established for a certain time only, or under a condition that in a certain event they shall cease; for when the time expires, or the event takes place, the servitude becomes extinguished of right. Servitudes are, in fine, extinguished by the destruction of the right of him who established them; for no one can transmit to another more right than he has himself; from thence it follows that, if any one establish a servitude on an estate in which he has only a right suspended by a condition, or defeasible at a certain time or in certain cases, or subject to rescission, the servitude becomes extinguished with his right. It is the same if his title to the estate, charged with the servitude, is annulled by reason of some defect inherent to the act : La. 821-2. § 2294. Prevention of Prescription. In a few states, any person apprehending the acquiring of an casement by the public may prevent it by posting a notice on the premises: Mass. 122,3; Ct. 1881,61,4; Ind. 4323. The posting must be for six successive days : ]\Iass. So, in others, a particnlar person may be prevented from acquiring an easement by service of a notice upon him : Mass. ; Me. 105,13 and 14 ; li.I. 175,7 ; Ct. 1881,161,2 ; Ind. 4322 ; lo. 2034. This notice is considered so far a disturbance of the easement or claim as to enable the party claiming it to bring an action and recover full costs : Mass. ; lo. 2035. Such notice must be served by an officer qualified to serve civil process : Mass. ; Me. ; R.I. ', Ct. 1831,161,3; Ind. 4323 ; lo. ; or by any agent of the land-owner: Me. If sucli claimant cannot be found, it may be posted on the premises : Ind. And if any notice be recorded, with a certificate of the officer, in the land record office, it is conclusive evidence of siuih service or posting : Mass., R.I., lo. In some, it must be recorded : Me. ; Ct 1881,161,3; Ind. 4324; lo. DEFINITIONS, ETC. 339 Art. 230. Of the Parties. § 2300. Of the Owner of the Servitude. He to whom a servitude is due has a right to make all the works uecessary to use and preserve the same. Such works are at his expense, and not at the expense of the owner of the estate which owes the servitude, unless the title hy which it is estahlished shows the contrary. The owner of the estate to which the servitude is due has the right to go on the estate which owes the servitude with his workmen, in the place where it is necessary to construct or repair the works necessary for the exercise of the servitude, to deposit there the materials necessary for those works and the rubhish made thereby, uuder the obligation of causing the least possible damage and of removing them as soon as possible. Nevertheless, if in the act establishing the servitude, it is said that the owner to whom it has been granted cannot construct works in order to exercise it, or can only construct them iu a certain manner, this agreement must be observed : La. 772-774. § 2301. Of the Estate. Even in the cases where the owner of the estate which owes the servitude is bound by tlie title to make the necessary works for the use and preservation of the servitudes, at his own expense, he may always exonerate himself by giving up the estate which owes the servitude to the owner of the estate to which it is due. If the estate for which the servitude has been established comes to be divided, the servi- tude remains due for each portion, provided that no additional burden accrue thereby to the estate which is subject to the servitude. Thus, for instance, in case of a right of passage, all the owners are bound to exercise that right through the same place : La. 775,776. § 2302. Of the Servient Owner. The owner of the estate which owes the servitude can do nothing tending to diminish its use, or to make it more inconvenient. Thus he cannot change the condition of the premises, nor transfer the exercise of the servi- tude to a place different from that on which it was assigned in the first instance. Yet if this primitive assignment has become more burdensome to the owner of the estate which owes the servitude, or if he is thereby prevented from making advantageous repairs osal (if his or her property, interests, and riglits, with legacies and benefits to his or her heirs after his or her death : N.M. 1377. All testaments are divided into three principal classes, to wit : — 1. Nuncupative or open testaments. 2. Mystic or sealed testaments. 3. II(dographic testaments : La. 1574. See also Glossary, Will. OF THE TESTATOR. 345 § 2601. Mutual aud Conditional "Wills. A testament cannot be made by the same act by two or more persons, cither for the benefit of a third person or under the title of a reciprocal or mutual disposition : La. 1 572. A conjoint or mutual will is valid ; but it may be revoked by any one of the testa- tors : Cal. G279; Dak. Civ. C. 689; Mon. Prob. C. 441; Uta. 1884,44,1,1,9; Ga. 2397. A will, the validity of which is made, by its own terms, conditional, may be denied probate, according to the event, with reference to the condition : Cal. (5281 ; Dak. Civ. C. G90; Mon. Prob. C. 443; Uta. 1884,44,1,1,11. § 2602. Who may make a Will." (a) In most states, every male aged tweuty-one, aud every female aged twenty-one, and unmarried," being of sound mind, may dispose of property, real or personal, by will : N.H. 193,1; Mass. 127, 1 ; Me. 74,1 ; K.I. 182,1 ; KY. 2,6,1,1 ; N.J. Wills, 3 and 26 ; Pa. Wills, 1 and 3 ; 0. 5914 aud 5929 ; Ind. 2556 ; Mich. 5758,5785 ; Wis. 2277,2281 ; Del. 84,2 ; Va. 118,3 ; W.Va. 1882,84,2 ; KG. 2137 ; Ky. 113,2 ; Tex. 1851,4857 ; Ore.* 64, 1 ; 13,75 ; Wy. 1882,107,1 ; S.C. 1853; Ala. 2274; Miss. 1262 ; Ma. 200,1 ; N.M. 1377 ; Ariz. 1489. Compare also § 6601. (B) In others, every male as above, and every unmarried female of eighteen : Vt. 2039,2421 ; 111. 148,1 ; lo. 2237,2322; Minn. 47,1 and 4 ; 59,2; Kan. 117,1 ; Neb. 1,2:3,123; Md. 49,3 ; Mo. 39G0-1 ; Ark. 34G4,G490 ; Col. 3481 ; Wash. 1318,23G3. (C) In others, every person, male or female, aged eighteen : Ct. 18,11,1,1,1 ; 1885, 155,130; Cal. 6270; Nev. 812; Dak. Civ. C. 683; Mon. Prob. C. 432 ; Uta. 1884, 44,1,2. (D) In I(.)wa and Texas, also every married person, or person who has been married, what- ever bo his or her age. So, of every woman married to a person of full age: Ore. 13,77; VVasli. 23G:i. (E) And in a few states, all women of eighteen, if married : " Wis., Kan. So, in Nebraska, all women of sixteen, if married. (F) In Georgia, every person aged fourteen, male or female : Ga. 2405 and 2406. (G) Every male of fourteen and female of twelve : N.M. 1378. (H) In Kentucky, a person under twenty-one may make a will in pursuance of a power ppecially given to that effect : Ky. 113,3. So, a father under twenty-one may appoint a guardian by will to his child : Ky. See in Part IV., Div. I. (1) In Tennessee and Idaho, the laws are silent; presumably any person of full age may make a will. See § 6601. (J) The miuor under sixteen years cannot dispose of any property, — save, however, the disjHisitions made under a marriage contract : La. 1476. The minor above sixteen can make a will of the same amount as a person of full age can do, even to the prejudice of the usufruct granted by law during their marriage to the father and mother of the minor not emancipated ; and the usufruct in that case will cease to the ad- vantage of the person in whose favor the minor had disposed of it if the minor dies, being still under the power of his father and mother ; and to make such disposition the minor has no need of the authorization or concurrence of his curator: La. 1477. Generally, all persons may dispose or receive by donation inter vwos or mortis causa, except such as the law expressly declares incapable. The incapacities are either absolute or relative ; absolute, which prevent the giving or receiving indefinitely, with regard to all persons; rela- tive, which prevent the giving to certain persons, or receiving from them. It is sufficient if the capacity of giving exists at the moment the donation is made : La. 1470-2. Notes. — « For wills by married people, see Art. 6iS and § 6450. >> But compare § 6601, the provisions of which seem contradictory. § 2603. Personal Property. In a few states, a male, or unmarried female (1) of eighteen may make a will in writing of personal property : Il.I. 182,7 ; Va. 118,3 ; W.Va. 1882^84,2 ; Mo. 3960-1 ; Ark. 6491 ; Ore. 64,2 ; Ala. 2280. (2) So, in Colorado, a male or unmarried female of seventeen : Col. 3431, 346 WILLS. (3) So, in New York, a male of eighteen, or unmarried female of sixteen: N.Y. 2, G, 1,21. In other states, there is no distinction between written wills of real or personal property. § 2604. Competency. Generally, a testator must be of sound mind : La. 1475. See § 2G02. And specially (1) a person having an insane delusion is incompetent to make a will: Mon. Prob. C. 43:3 ; N.M. 1378. (2) Persons under guardianship cannot make a will : N.M. And see also in Part IV., Probate Code. (3) Persons under guardianship as spendthrifts may nut make a will ; but a will made be- fore the order of court is valid : N.M. 1378. Old age, and the weakness of intellect resulting therefrom, does not of itself ccraslitute in- capacity ; but if that weakness amount to imbecility, the testamentary capacity is gone : Ga. 2408. In cases of doubt as to the e.xtent of this weakness, the reasonable or unreasonable dis- position of his estate should have much w-eight in the decision of the question : Ga. An incapacity to contract may co-exist with a capacity to make a will ; the amount of in- tellect necessary to constitute testamentary capacity is that which is necessary to enable the party to have a decided and rational desire as to the disposition of his property ; his desire must be decided, in distinction from the wavering, vacillating fancies of a distempered intellect ; it must be rational, in distinction from the ravings of a madman, the silly pratings of an idiot, the childish whims of imbecility, or the excited vagaries of a drunkard : Ga. 2409* A deaf, dumb, and blind person may make a will, provided the interpreter and scrivener are both attesting witnesses thereto, and are both examined upon the motion for probate of the same : Ga. 2412. The deaf and dumb from birth cannot make a will unless they can declare it in writing : N.M. In all cases where an interpreter is necessary to convey to the scrivener or the witnesses the •wishes of the testator, such interpreter must be a person competent to be a witness, and must be sworn on the motion for probate, if within the jurisdiction of the court : Ga. 2413. It is enacted that conviction of crime in no case deprives a person of the power of making a will; nor does any imprisonment, unless used as duress: Ga. 2411. But a lunatic may make a will during a lucid interval : Ga. 2407 ; N.M. So, a will made before the insanity is valid : N.M. A monomaniac may, in Georgia, make a will, if the will is in no way the result of or connected with that monomania. But in all such cases it must appear that the testament does speak the wishes of the testator, unbiassed by the mental disease witli which he is affected : Ga. Eccentricity of habit or thought does not dejirive a person of the power of making a testa- ment : Ga. 2408. Proof is not admitted of the dispositions having been made through hatred, anger, sugges- tion, or captation : La. 1492. § 2605. Will Voluntary ; Fraud and Duress. The statutes of Georgia declare that the very nature of a will requires tliat it should be freely and voluntarily executed ; hence any- thing which destroys this freedom of volition invalidates the will : Ga. 2401. So, in Ohio, a will must be made " not under any restraint : " 0. 5914. Fraudulent practices upon the testator's fears, affection, or sympathies invalidate a will : Ga. Se, duress, menaces, or any undue influence whereby the will of another is sub- stituted for the will of the testator : Cal. G272 ; Dak. Civ. C. 685 ; Mon. Prob. C. 434 ; Uta. 1884,44,1,1,3 ; Ga. So, of fraud in procuring the will to be made : 111. 148,2 ; Cal. ; Dak. ; Mon. ; Uta. ; or compulsion : 111. In Georgia, a will procured by misrepresentations or fraud of any kind, to tlie injury of the heirs-at-law, is void : Ga. 2402. And revocations of wills procured by fraud or duress, as above specified in the several states respectively, will be void in the same way: Cal., Dak., Mon., Uta. § 2606. Error and Mistake. In Georgia, a will executed under a mistake of fact as to the existence or conduct of the heir-at-law of the testator is inoperative, so far as such heir-at- OF THE PERSONS WHO MAY TAKE UNDER A WILL. 347 law is couceinod, and the testator shall be deemed to have died intestate as to him ; Ga. 24U3. § 2607. Married "Women. For wills by married women, see Art. 648 and $ 6450. § 2608. Good in Part. In Georgia, it is enacted that, if a will be legal in part and illegal in part, that which is legal may be sustained, unless the whole will so constitute one testamentary scheme that the legal alone cannot give effect to the testatoi-'s intention ; in such case the whole will fails : Ga. 2400. Art. 261. Of the Persons who may Take under a Will." § 2610. Generally, a devise or bequest of real or personal property may be made to any person or corporation capable by law of holding such real or per- sonal estate : N.Y. 2,6,1,3 ; Ind. 2556 ; Cal. 6275 ; Dak. Civ. C. 687 ; Mon. Prob. C. 4.37 ; Uta. 1884,44,1,1,5 ; Ala. 2275 ; La. 1470. For Louisiana, see also § 2602. And also, with regard to the capacity of receiving, it is sufficient if it exists at the moment of the acceptance of the donation inter vivos, or at the opening of the succession of the testator. When the donation depends on the fulfilment of a condition it is sufficient if the donee is capable of receiving at the moment the condition is accomplished : La. 147;3-4. Full Power of Disposition. It is, in Georgia, provided that a testator may by bis will make any disposition of property not inconsistent witli the laws, or contrary to the policy, of the state ; he may bequeath his entire estate to strangers, to the exclusion of his wife and children, but in such case the will should be closely scrutinized, and upon the slightest evidence of aberration of intellect, or collusion, or fraud, or any undue influence or unfair dealing, pro- bate should be refused : Ga. 2399. Note. — « For devises to aliens, see Art. 601. § 2611. Devise to Debtors. In many states, it is provided that the discharge or bequest in a will of any debt or demand of the testator against any person is not valid as against the creditors of the 'deceased, but is construed as a specific bequest of such debt or demand ; the amount thereof is to be included in tlie inventory, and shall, if necessary, be applied to the payment of debts of the estate ; and if not so necessary, shall be paid in the same manner and proportion as other specific legacies : N.Y. 2,6,3,14 ; 0. 6068 ; Ind. 2574 ; Kan. 37,64 ; Cal. 11448 ; Ore. Civ. C. 1086 ; Nev. 592 ; Wash. 1450 ; Dak. Prob. C. 118 ; Ida. Prob. C. 112 ; Mon. Prob. C. 123 ; Uta. Prob. C. 4,6 ; Ariz. 1627. See § 2620, and the Probate Code. The same law applies if the bequest, etc., be to the executor : 111. 148,19 ; Kau. ; Cal. ; Ore. ; Nev. ; Col. 3487 ; Wash. ; Dak. ; Ida. ; Mon. ; Uta.; Ariz. § 2612. Devise to Creditors. In two states, it is enacted that a legacy shall not be deemed satisfaction of a debt due from the testator to the legatee unless such in- tention is expressed or clearly implied in the will : Del. 89,38 ; La. 1641. Nor, in Louisiana, is a legacy made to a servant deemed compensation for wages due. § 2613. Devise to "Witnesses. A devise or bequest in a will to a subscribing wit- ness is, generally, void, unless there are the requisite number of other subscribing witnesses. See § 2G49. § 2614. Debts by Executors. Generally, the naming of a person executor in a will is not to be construed as the discharge or bequest of any debt or cLaim wliich the testator had against him : N.H. 196,10 ; K.I. 185,6 ; N.Y. 2,6,3.13 ; N.J. Ex- ecutors, etc. 8 ; Pa. Decedents, 52 ; O. 6069 ; Ind. 2572 ; IlL 148,19 ; Kan. 37.65 ; 318 WILLS. Md. 50,139-140 ; Del. 89,18 ; Va. 126,13 ; N.C. 1431 ; Ky. 39,1,10 ; Mo. 99 ; Ark. 95 ; Tex. 1958; Cal. 11447 ; Ore. Civ. C. 1085 ; Nev. 591 ; Col. 3487 ; Wash. 1449 ; Dak. Prob. C. 117 ; Ida. Prob. C. Ill ; Mon. Prob. C. 122 ; Wy. 47,81 ; Uta. Prob. C. 4,5 ; S.C. 1890 ; Ala. 2291 ; Miss. 2019 ; Fla. 2,6 ; Ariz. 1626. But the same is assets in the hands of the executor like other claims, and he is chargeable with it as for so much cash when it grows due : N.H., R.I., N.Y., N.J., 0., Ind., 111., Kan., Md., Del., Mo., Cal., Ore., Nev., Col., Dak., Ida., Mon., Wy., Uta., S.C, Ariz. And it is to be included in the inventory : N.Y., Pa., 0., Kan., Md., Del., Cal., Ore., Nev., Wash., Dak., Ida., Mon., Uta., Miss., Ariz. He is liable for it like any other debtor of the deceased : Tex., Ore., Wash., Miss. Unless an intention to release such debt be expressly declared in the will : E.I., N.J., 111., Ky., Col., S.C, Ala., Fla. § 2615. Illegitimate Children. In South Carolina, if any person who is an inhabitant of the state, or who has any estate therein, shall beget any bastard child, or live in adultery with a woman, said person having a wife or lawful children of his own living, and shall give, by legacy or devise, or by direct deed, to or for the use and benefit of said woman or his bastard children any larger proportion of the real clear value of his estate, real and personal, after pay- ing of his debts, than one fourth part thereof, such legacy or devise shall be null and void for so much of the amount and value thereof as shall exceed such fourth part of his estate : S.C. 1866,1785. Natural children or acknowledged illegitimate children cannot receive from their natural parents by donations inter vivos or mortis causa beyond what is strictly necessary to procure them sustenance, or an occupation or profession which may maintain them, whenever the father or the miither who has thus disposed in their favor leaves legitimate children or descendants. Those donations shall be reducible in case of excess, according to the rules laid down under the title : Of Father and Child. When the natural mother has not left any legitimate children or descendants, natural chil- dren may acquire from her by donation inter vivos or mortis causa to the whole amount of her succession. But if she has left them only a part, and has disposed of the rest in favor of other persons, her natural children have no action against her heirs for anything more than so much as is wauting to supply the maintenance that is secured to them by law in case what she has left them be not sufficient fur their support. When the natural father has not left legitimate children or descendants, the natural child or children acknowledged by him may receive from him, by donation inter vivos or mortis causa, to the amount of the following proportions, to wit, — One fourth of his property, if he leaves legitimate ascendants or legitimate brothers or sisters or descendants from such brothers and sisters ; and one third, if he leaves only more re- mote collateral relations. In all cases in which the f;ither disposes, in favor of his natural children, of the portion per- mitted him by law to dispose of, he is bound to dispose of the rest of his property in favor of his legitimate relations; every other disposition shall be null except those which he may make in favor of some public institution. Natural fathers and mothers can, in no case, disi)ose of property in ftivor of their adulterine or incestuous children, unless to the mere amount of what is necessary to their sustenance or to procure them an occupation or profession by which to support themselves : La. 1483-1488. § 2616. Concubines. Those who have lived together in open concubinage are respec- tively incapable of making to each other, whether inter vivos or viortis causa, any donation of iiinnovaldes ; and if they make a donation of movables, it cannot exceed one tenth part of the whole value of their estate. Those who afterwards marry are excepted from this rule : La. 1481. § 2617. Devise to Guardians. The minor who has a right to dispose by donation mortis causa cannot make sucli disposition in favor of his tutor, nor of his preceptors or in- etructors, whilst he is under their authority. OF THE PERSONS WHO MAY TAKE UNDER A WILL. 349 The minor, even when he becomes of age, cannot dispose of property, either by dona- tion inter vivos or mo7'tis causa, in favor of the person who has been his tutor, unless the final account of the tutorshi)) has been previously rendered and settled. The two cases above mentioned do not ajiply to the relations of the minor who have been his tutors or instructors: La. 1478-L). § 2618. Mortmain. In Pennsylvania, no real or personal estate can be conveyed or devised to or in trust for any religious or charitable use except by will or deed exe- cuted and attested at least one month before the decease of the testator : Pa. Ciiarities, 23 ; Wills, 22. In Georgia, such will must be executed at least ninety days before death : Ga. 2419. But such conveyance, devise, or bequest is good if made in good faith for an adequate valu- able consideration : Pa. The devise or conveyance is in such case void, and the estate descends as if undevised : Pa. BeUgious Societies, 10. Compare 6 144G. Devises to Charities. In New York, no person leaving a husband, wife, child, or parent can devise or bequeath to any benevolent, charitable, literary, scientific, religious, or mis- sionary society or corporation, in trust or otherwise, more than one half his net estate after payment of debts ; N.Y. 18G0,3G0,1. Such devise or bequest is valid, but to this extent only: N.Y. In Georgia, a person leaving issue or a widow cannot so devise more than " one third of his estate : " Ga. 2419. In several states, a devise or bequest made to charitable, religious, or educational purposes by a testator leaving issue or adopted children or their issue, is void, unless the will were executed (1) at least one year before the testator's death: 0. 5915 ; (2) thirty days before (whether the testator leave issue or not) : Cal. 6313; Mon. Prob. C. 473. Such devises must not exceed one third of the estate if he leave heirs; and in such case a pro rata deduction is made ; and all dispositions of property contrary hereto are void, and go to the residuary legatee, next of kin or heirs, according to law : Cal., Mon. § 2619. Devises to Doctors. Doctors of physic or surgeons who have professionally attended a person during the sickness of which he dies cannot receive any benefit from dona- tions inter vivos or mortis causa made in their lavor by the sick person during that sickness. To this, however, there are tlie following exceptions : — 1. Remunerative dispositions made on a particular account, regard being had to the means of the disposer and to the services rendered. 2. Universal dispositions in case of consanguinity : La. 1489. § 2620. "Wills Fraudulent against Creditors. [3 & 4 W. «Sz; M. C. 14.] In two states, all wills and testaments, limitations, dispositions, or appointments of or concerning real estate, or any rent, profit, or charge of the same, whereof any person at the time of his decease is seized in fee-simple in possession, reversion, or remainder, or has power to dispose of by last will, are fraudulent and void as against creditors : 111. 59,10 ; S.C. 1807 ; provided that where there is any limitation or appointment, devise, or dispositicni of real estate, for the payment ot any real and just debts, or any portion or sum of money for any child or children of any per- son other than the heir-at-law, according to any marriage contract or agreement in writing bona fide made before such marriage, the same and every of them shall be in full force and be holden and enjoyed by such persons until such debt or portion be raised and satisfied accord- ingly: S.C. All devises of real estate or any interest therein contrived and made to d<>fraud creditors of theii just debts shall be deemed and taken to be null and void only as against such creditors, their heirs and assigns : Tenn. 2432. And every such creditor has his suit against such devisee, and severally or jointly against him and the heirs and executors in like manner as it could be brought against the heirs-at- law: 111. 59,11 ; Tenn. 2433. And if the devisee alien land before action, he is answerable for such debt to the value of the lands so aliened; but the lands, if in good faith aliened before action brought, are not liable to such execution : Tenn. 2434-5. For other states, see in the Probate Code. 350 WILLS. And generally, in all states, property can only be devised or bequeathed subject to the rights of creditors. See Part IV., Division L § 2621. Effect. Every disposition in favor of a person incapahle of receiving shall be null, whether it be disguised under the form of an onerous contract or be made under the name of persons iutei-j)osed. In such case, the disposition falls [lapses]. The father and mother, the children and descendants, and the husband or wife of the in- capable person shall be reputed persons interposed : La. 1491. § 2622. Unborn Children, but conceived at the date of the testator's death, take a devise under the will as if living, in Delaware : Del. 84,22; La. 1482. In several states, the same would result from the general provision (§ 6041) men- tioned in § 1412, note " : Cal., Dak. A child conceived before, but not born until after, a testator's death, or any other period when a disposition to a class vests in right or in possession, takes, if answering to the description of the class : Cal. 6339 ; Dak. Civ. C. 742 ; Mon. Prob. C. 496 ; Uta. 1884,44,1,2,23. But in one state, no devise of any estate, except for public or charitable uses, or for the care of cemeteries or graves, can be made to any persous but such as are at the time of the testator's death in being, or to their immediate issue or descendants : Ct. 1885,110,130. § 2623. Aliens. Donations infer vivos and mortis causa may be made in favor of a stranger, when the laws of his country do not prohibit similar dispositions from being made in favor of a citizen of this State : La. 1490. See § 6020. § 2624. Estate in Common. A devise or legacy given to more than one person vests in them as owners in common : Cal. 6350 ; Dak. Civ. C. 753 ; Mon. Prob. C. 507 ; Uta. 1884,44,1,2,34. Compare also §§ 1371,1373. Art. 263. "What may be Devised. § 2630. General Provision. (A) In most states, all property, real or personal, may be devised : N.H. 193,1; Mass. 127,1 ; Me. 74,1 ; Vt. 2039; R.I. 182,1 and 7 ; N.J. Wills, 22 and 9 ; Pa. Wills, 1 ; 0. 5914 ; 111. 148,1 ; Kan. 117,1 ; Del. 84, 1-2 ; Mo. 3960 ; Ark. 6490 ; Tex. 4858; Cal. 6270 ; Ore. 64,1 ; Nev. 812 ; Col. 3481 ; Dak. Civ. C. 683 ; Mou. Pr. C. 432; Wy. 1882,107,1 ; Uta. 1884,44,1,2 ; Miss. 1262; Fla. 200,1 ; Ariz. 1492. (b) So, in others, all property real, or lands, tenements, and hereditaments, or any interest therein (and all property personal) which is descendible to heirs (or •which will go to personal representatives) : N.Y. 2,6,1,2 ; Ind. 2556 ; Mich. 5785, 5788 ; Wis. 2277 ; Minn. 47,1 and 4 ; Neb. 1,23,123 and 126 ; Md. 49,1 ; Va. 118, 2 ; W.Va. 1882,84,1 ; N.C. 2140 ; 1884,293; Ky. 113,2; Cal. 6274 ; Dak. Civ. C. 686 ; Mon. Prob. C. 436 ; Ala. 2274 ; Ariz. 1489. Whether it be held in possession, reversion, or remainder : 111., Tex., Col., Miss., Fla. A testator may bequeath all his personal estate remaining at his decease : 111. ; Mich. 5788 ; Wis. 2281 ; lo. 2323 ; Minn. ; Neb. ; Va. ; W.Va. ; N.C. ; Ky. ; Tex. ; Col. ; Miss. ; Ariz. 1492. [So, doubtless, in all states.] So, in many states, of real estate : R.I., 111., lo., Va., W.Va., N.C, Ky., Tex., Col., Miss. See also § 2634. A widow may, in many states, devise the crops upon her dower estate. See $ 32.36. No will can interfere with the laws against porpetnitios, or othorwise create a limitation or estate not authorized by law ("see, for other states, ^ 1420,1440) : Md. 49,2. One may, in most states, devise lands of which he is disseized or to which he has only a right of entry. See ^ 2705,1401. So, rights of entry for condition broken : N.C. 2140. WHAT MAY BE DEVISED. 351 In North Carolina, it is expressly provided that all contingent, executory, or future interests in real or personal estate may be devised. For estates tail, see ^ 1313,1407. So, in several states, estates' pur mitre vie may be devised : R.I. 182,1 ; N.J. Wills, 1 ; Pa. ; Ind. 2567 ; S.C. 1855. Moneys due on life-insurance policies of the testator may, under certain limitations, be be- queathed, though the estate be insolvent : Me. 75,10. So, in otlier states ; see in Part III. Estates for years may be devised : li.I. Estates in severalty, joint-tenancy, or in common, may be devised : Pa. Homestead estates may, in a few states, be devised free of debts. But in others, they cannot be devised at all. See in Part IV. § 2631. Exceptions." But § 2630 does not authorize the testator, (1) to devise the widow's dower estate : Jo. 2322 ; Mo. ; Ore. ; Wy. For other states, see in Art. 320. (2) Nor, in most states, to bequeath personalty so as to interfere with her or the husband's share in lieu of bequest : lo., Wy. For other states, see § 3262. (3) Nor, iu most states, to devise homestead estates : Mass., lo. For other states, see in Part IV. (4) Nor to devise or bequeath the provision allowed bylaw to the widow and fjxmily : lo., Wy. For other states, see in Part IV., Division I. (5) Nor, in a few, to devise estates tail : Mass., Md. For other states, see § 1313. But in one state, testators are expressly authorized to devise in fee estates held by them in tail : R.I. See ^ 1313, C. Note. — '^ For citations, see last section. For Community Property, see Art. 340. § 2632. The Disposable Part. Ill a few states, a testator leaving children is prohibited from devising more tlian a certain portion of his estate away from them. (See also §§ 2618,3026.) For New Mexico, see iu Art. 340. In Louisiana, there are laws as fidlows : — Of the Disposable Portion and the Legitime. Donations infer vivos or mortis causa can- not exceed two thirds of the property of the disposer, if he leaves, at his decease, a legitimate child ; one half, if he leaves two children ; and one third if he leaves three or a greater number. Under the name of children are included descendants, of whatever degree they be, it being understood that they are only counted for the child they represent. Donations inter vivos or mortis causa cannot exceed two thirds of the property, if the dis- poser, having no children, leave a father, mother, or both. In the cases above prescribed, the heirs are called forced heirs, because the donor cannot deprive them of the portion of his estate reserved for them by law, except in cases where he has a just cause to disinherit them. Wlun-e tliere are no legitimate descendants, and in case of the previous decease of the father and mother, donations inter vivos or mortis causa may be made to the whole amount of the property of the disposer, saving tlie reservation made hereafter. The donation inter vivos shall in no case devest tlie donor of all his jiroperty ; he must reserve to himself enough for subsistence ; if he does not do it, the donation is null for the whole. The legitimate portion of which the testator is forbidden to dispose to the prejudice of his descendants, being once fixed by the number of children living or represented at the death of the testator, does not diminisli by the renunciation of one or any of them. The ])art of those who renounce goes to those who accept. If the disposition made by donation inter vivos or mortis causa be of a usufruct, or ot an an- nuity, the value ot which exceeds the disposable portion, the forced heirs have the option either to execute the disposition or to abandon to the donee the ownership of such portion of the estate as the donor had a right to dispose of. The value in full ownership of property which has been alienated, either for an annuity for life or wuh reservation of a usufruct, to one of those who succeed to the inheritance in the direct 352 WILLS. descending line, shall be imputed to the disposable portion ; and the surplus, if any there "be, shall be brouijht into tlie succession ; but tliis imputation and this collation cannot be * 3484 ; Wash.* 1321 ; Dak. Civ. C. 702 ; Mon. Prob. C. 453 ; Wy. 1882,107,5 ; Uta. 1884,44,1,1,19 ; S.C. 1859 ; Ga. 2473 ; Ala. 2296 ; Miss. 1263 ; Fla. 200,2 ; Ariz. 1497. (b) Or, in most states, by some other person (1) in his presence and by his direction : N.H., Mass., Me., Vt, Ct., N.J., Pa., Ind., 111., Mich., Wis., Minn., Neb., Md., Va., W.Va., KC, Ky., Mo., Ark., Tex., Cal., Ore., Col., Wash., Dak, Mon., Wy., Uta., S.C, Ala., Miss., Ariz. (2) " By his direction and consent : " R.I., N.Y., Md., Fla. (3) In one, by some other person in his absence and by his express direction : Del. ; (4) either in his presence or by his direction : 0., Kan., Nev. ; by his direction (simply) : lo., Ga. (C) And when done by such other person, the fact of the destruction, with the con- sent or direction of the testator, must be proved, in several states, by at least two wit- nesses : N.Y. ; Ark. ; Cal. 6293 ; Ore. ; Dak. Civ. C. 703 ; Mon. ib. 454 ; Uta. 1884,44, 1,1,20; Ala. In most states, there is a special provision that such bnming, tearing, etc., must be made with the intention of revoking it : Mass. ; Me. ; Vt. ; N.Y. ; 0. ; Ind. ; Mich. ; Wis. ; lo. ; Minn. ; Kan. ; Neb. ; Va. ; W.Va. ; Ky. ; Ark. ; Cal. ; Ore. ; Nev. ; Dak. ; Mon. ; Wy. ; Uta. ; Ga. 2474 ; Ala. ; Ariz. (D) In Georgia, the cancellation must be in a material part ; if in an immaterial part, — such as the seal, — the intention to revoke will not be presumed. (E) When done by cancellation, the revocation must be witnessed iu the same manner as the making of a new will : lo. 2330. A revocation by obliteration may be partial or total, and is complete if the material part is 360 WILLS. BO obliterated as to show an iutention to revoke ; but a part may not be revoked unless the new disposition is legally effected : Dak. Civ. C. 704. Notes. — » Applies only to wills of real estate ; ** only to written (not nuncupative) wills. But this latter is so, probably, in all states. § 2673. Subsequent Will. Or, in most states, a will may be revoked (A) by- some other writing, signed, attested, and subscribed like a will : N.H. ; Mass. Me.; Vt.; R.I. ; N.Y. ; N.J. Wills, 23; Pa.;" 0.; Ind. ; Mick; Wis.; Minn. Kan. ; Neb. ; Md. 49,5 ; 1884,293 ; Del. ; Va. ; W. Va. ; N.C. ; Ky. ; Ark. ; Tex. ; Cal 6292; Ore. ; Dak. ; Mon. ; Uta. ; S.C. ; Ga. 2472 ; Ala. ; Miss. ; Fla. ; La. 1G92 Ariz. 1497 ; (b) " by a subsequent will or codicil in writing : " N.H. ; Me. ; Vt. RI. ; Ct. ; N.Y. ; N.J. ; Pa. ; 0. ; 111. ; Mich. ; Wis. ; lo. ; Minn. ; Kan. ; Neb. Md. ; Del. ; Va. ; W. Va. ; N.C. ; Ky. ; Mo. ; Ark. ; Tex. ; Cal. ; Ore. ; Nev. ; Col. Wash. ; Dak. ; Mon. Prob. C. 456 ; Wy. ; Uta. ; S.C. ; Ga. ; Ala. ; Fla. ; Ariz. See also § 2672 for citations. Or by a subsequent holographic will or writing (§ 2G45) : N.C. So, in one other; but it seems that such written revocation need be subscribed by the testator only : Md.* In a few states, a subsequent valid will acts as revocation of the first one, whether specially so expressed therein or not : lo. ; Ga. 2471,2475. The same is perhaps implied in the statutes of other states. But see below, and also § 2676. In Georgia, it is enacted that a revocation may be either express or resulting : the former is where the maker by writing or acts annuls the instrument ; the latter results from the execution of a subsequent inconsistent will : Ga. 2471. But an implied revocation extends only so far as an inconsistency exists between the two wills ; and any portion of the first which can stand consistently with the testa- mentary scheme and bequests made in the last shall remain unrevoked : Cal. 6296 ; Dak. Civ. C. 706 ; Mon. ; Uta. 1884,44,1,1,22 ; Ga. 2475 ; La. 1693. A revocation made in a posterior testament has its entire eftect, even though this new act re- mains without execution, either through the incapacity of the person instituted or of the legatee, or through his refusal to accept it, provided it is regular as to its form : La. 1694. (C) in many, it is specially provided that these provisions (§§ 2672,2673) do , not prevent the revocation implied in law from a change in the condition and cir- cumstances of the testator (§ 2676) : N.H. 193,15 ; Mass. ; Me. ; Vt. ; Pt.I. ; N.Y. ; O. ; Mich. ; Wis. ; Minn. ; Kan. ; Neb. ; Del. ; Va. ; Ky. ; Mo. ; Ark. ; Nev. ; Wash. ; Wy. ; Ga. 2477 ; Fla. ; Ariz. Note. — « See § 2672, note ". See also Art. 280, for devises or legacies revoked by other acts in pais. § 2674. "What "Wills may be Revoked. All wills are declared revocable : Ga. 2470. And even in the case of mutual wills with a covenant against revocation the power of revoca- tion remains : Ga. Tlie revocation of a wdl executed in duplicate may be made by revoking one of the duplicates : Cal. 6295 ; Dak. Civ. C. 705 ; Mon. Prob. C. 455 ; Uta. 1884,44,1,1,21 ; Ga. 2473. § 2675. Parol Revocation. A will of personal property may be revoked by words, if they are committed to writing in the testator's lifetime, read to him and allowed, and so proved by three witnesses : Fla. 200,3. No written will shall be revoked or altered by subsequent spoken words, except the Bame be in the lifetime of the testator reduced to writing and read over to him and ap- proved, and the same be proved to have been so done by oaths (1) of two witnesses, competent as at common law : Pa. Wills, 17 ; Tenn. 3008 ; (2) of three such witnesses : N.J.« Wills, 14; Md. 49,6. No words spoken shall revoke or annul any will executed duly in writing as re- quired by law : 111. 148,17 ; Col. 3484. A written will can be revoked (mly by making special mention of it ; and in case this should not be done, or should have escaped his memory, he shall refer to it in the following REVOCATION. 361 manner, " that it is revoked, and that it would have been repeated verbatim could he have remembered it : " N.M. 1384. Note. — " Only wills of personalty can, in the noted states, be so revoked. § 2676. Implied Revocation, (a) In some state.s, a will may be entirely re- voked by operation of law.'* Thus, in many, a will by an unmarried woman is deemed revoked by her subsequent marriage: E.I. 182,6 ; Ct.* 1875,84; N.Y. 2,6,1,44 ; Pa. Wills, 19 ; Ind. 2562 ; III 39,10 ; Va. 118,7 ; W.Va. 1882,84,6 ; N.C. 2177 ; Ky. 113,9 ; Mo. 3965 ; Ark. 6496 ; Cal. 6300 ; Ore. 64,7 ; Xev. 822 ; Dak. Civ. C. 709 ; Mon. Prob. C. 460 ; Ga. 2477 ; Ala. 2283. And it is not revived by her husband's subsequent death : Pa., Cal., Nev., Dak., Mon. But in Ohio, expressly, a will by such unmarried woman is not so revoked by her subsequent marriage : 0. 5958. (B) So, in a few states, a will by a man is deemed revoked (1) by his subsequent marriage : R.I. ; Ct." 1885,110,135 ; 111. 39,10 ; Va. ; AV.Va. ; Ky. ; X.C. ; Ga. ; or (2) by the birth of a child : Ct." But this section does not apply to a will made in exercise of a collateral power of appointment : Va., W.Va., Ky., N.C. (C) In several states, a will (when disposing of the whole estate, in New York) is deemed revoked if the testator afterwards marry and leave issue by such mar- riage at death (or posthumous children ; § 2844), unless provision for such issue is made in the will or by settlement, or they are in such way mentioned in the will as to show an intention not to make provision for them ; and no other evi- dence to rebut the presumption of such revocation can be received : N.Y. 2,6,1,43 ; Mo. 3964 ; Ark. 6495 ; Cal. 6298 ; Ore. 64,6 ; Dak. Civ. C. 708 ; Mon. Prob. C. 458 ; Uta. 1884,44,1,1,24 ; Ala. 2282. So, in others, any will by a testator having no children at the time, and leaving children at his death : 0. 5959 ; Kan. 117,36. In one, if any perscra making a will shall afterwards marry and die, leaving his widow, or issue of such marriage, unless the will shall have been made iu contemplation of marriage expressed on its face, and shall contain a provision for future wife, and children, if any, it is deemed revoked for all purposes: S.C. 1860. (D) So, in several other states, the will of a testator afterwards marrying and leaving a widow is deemed revoked, unless provision is made by marriage settle- ment or in the will, or she be mentioned therein so as to show an intention not to make such provision : N.Y. ; Cal. 6299 ; Nev. 821 ; Wash. 1322; Dak. ; Mon. Prob. C. 459 ; Uta. 1884,44,1,1,25 ; Ala. And no other evidence to rebut this pre- sumption can be received : N.Y., Cal., Nev., Wash., Dak., Mon., Uta. (e) In other states, a will made when there are no issue living, without any mention of possible issue, is void if the testator leave a legitimate child at death * (or posthumous child): Ct. 18,11,6 ; N.J. Wills, 18; Del. 84,11; Va.m8,17; W.Va.* 1882,84,16 ; Ky. 113,24; Tex. 4869 ; Miss.* 1263. Unless the child is provided for by settlement : Tex. So, in others; but if such child dies under twenty-one, before marriage or without issue, the will takes effect : Va., W.Va., Ky., Miss.* In Virginia and Texas, the wdl is good unless he die under twenty-one, and without issne. So, the birth of any issue to the testator after a will made with no provision for such event is a revocation : Ind.'' 2560 ; Ga. 2477. And if such child or issue die leaving a widow, she holds such estate for her life ; but other- wise, it descends according to the will : Ind. 25(51. (F) The testament falls by the birth of legitimate children of the testator, posterior to its date : La. 1705. 362 WILLS. (G) No will shall be revoked by any presumption of an intention, on the ground of an altemtion in circumstances : N.C. 2178. Notes. — " For other states, and similar cases, — such as that of after-born children, in which tlie will will be only partially revoked, — see Art. 284. ^ Unless provision is made in the will for such contingency. " If such issue survive the testator. § 2677. Effect. The revocation of a will revokes all its codicils : Cal. 6305 ; Dak. Civ. C. 714; Mon. Prob. C. 465 ; Uta. 1884,44,1,1,30. A revocation made in a posterior testament has its entire effect, even though this new act remains without execution either through the incapacity of the person instituted or of the lega- tee, or through his refusal to accept it, provided it is regular as to its ft)rm : La. 1694. An express revocation takes effect instantly or independently of the validity or ultimate fate of the will, or other instrument containing it; a resulting revocation takes effect only when the subsequent inconsistent will becomes effectual; and hence, if from any cause it fails, the revoca- tion is not completed : Ga. 2471. § 2678. Revival. A will or codicil once revoked can be revived by a re-execution thereof, or by a codicil duly executed : Va.« 118,9 ; W.Va. 1882,84,8 ; Ky.° 113,11 ; Ga. 2478 ; but only to the extent to which an intention to revive such will is shown : Va., W.Va. In one state, a parol republication in the presence of the original witnesses is good : Ga. 2478. Note. — " And in two states, it can he revived in no other way : Va., Ky. § 2679. Implied Revival. In most states, if a second will be made, the can- celling, destruction, or revocation of it does not revive the first will, unless such intent appear in the terms of the revocation, or the first will be duly republished after such cancelling, etc. : N.Y. 2,6,1,53 ; 0. 5960; Ind. 2559 ; Kan. 117,38; Mo. 3968; Ark. 6503; Cab 6297 ; Ore. 64,13; Nev. 820 ; Wash. 1328 ; Dak. Civ. C. 707 ; Mon. Prob. C. 457; Uta. 1884,44,1,1,23; Ga. 2472 ; Ala. 2297 ; KM. 1385. The execution of a codicil referring to a previous wdl has the effect to republish the will, as modified by the codicd : CaL 6287 ; Dak. Civ. C. 694 j Mon. Prob. C. 448 ; Uta. 1884,44,1,1,15. § 2680. Revocation by Action. The same causes which, according to the foregoing provisions of the present title, authorize an action for the revocation of a donation inter vivos, are sufficient to ground an acticm of revocation of testamentary dispositions ; provided, however, that no charges or conditions can be imposed by the testator on the legitimate portion of forced heirs, nor can they lose their inheritance for any act of ingratitude to the testator prior to his decease. That he has not disinherited them shall be sufficient evidence of his having for- given the offence. If the action be founded on a grievous injury done to the memory of the testator, it must be brought within a year from the day of the offence: La. 1710,1711. Art. 269. Preservation of Wills. § 2690. Deposit. In many states, the testator or his agent may deposit his will in tlie registry of probate " in the county where he lives, to be safely kept : N.H. 1883,61,1 ; Mass. 127,9 ; Me. 64,2 ; KY. 3,7,3,63 ; 1882,410,1760,1761 ; O. 5917 ; Mich. 5794; Wis. 2291 ; lo. 2331 ; Kan. 117,3; Neb. 1,23,133; Md. 49,33 ; Ky. 113,41 ; Ark. 6530; Dak. Civ. C. 698 ; Ariz. 1498. The register, judge, etc. (see note), on being paid a fee, is bound to receive and keep the wdl, and (except in Iowa, Maryland, Kentucky, aud Arkansas) give a certificate of deposit : N.H., Mass., Me., N.Y., O., Mich., Wis., lo., Kan., Neb., Md., Ky., Ark., Dak., Ariz. Note. — " Or, with the clerk of any county : N.Y. ; with the clerk of the County Court : Ky., Ark. ; the judge of the County Court : Wis. NUNCUPATIVE WILLS. 363 § 2691. Enclosure. There is generally a provision that a will so deposited must be enclosed in a sealed wrapper: N.H. 1883,61,2 ; Mass. 127,10 ; Me. 64,2 ; N.Y. 3,7,3,08 ; 0. 5918 ; Mich. ; Wis. ; lo. ; Kan. 117,4 ; Neb. ; Md. 49,33 ; Ky. 113,41 ; Ark. ; Dak. ; Ariz. With an indorsement thereon of the name and residence of the testator : N.H., Mass., Me., N.Y., 0., Mich., Wis., lo., Kan., Neb., Md., Dak., Ariz. ; and of the time of deposit : N.H., Mass., Me., N.Y., 0., Mich., Wis., Kan., Neb,, Md., Dak., Ariz. ; and of the person by whom it is deposited : N.H., Mass., 0., Mich., Wis., Kan., Neb., Ariz. ; and of the person to whom it is to be delivered after the death of the testator : " Mass. ; Me. ; N.Y. 3,7,7,69 ; 0. ; Kan. ;« Md. ; Ky. ;« Ark. ; " Dak." Civ. C. 699. A will so deposited cannot be opened or read : Mass., Me., N.Y., 0., Kan., Md., Ky., Ark., Dak. Note. — " This provision is not, in the noted states, made indispensable : N.Y., 0., Kan. § 2692. Delivery. During the life of the testator a will so deposited can be delivered only to the testator himself: KH. 1883,61,3 ; Mass. 127,11 ; Me. 64,2 ; N.Y. 3,7,3,69 ; 0.5919; Mich. 5795 ; Wis.; lo. ; Kan. 117,5 ; Neb. 1,23,134 ; Md. 49,33 ; Ark. ; Dak. ; Ariz. 1499. Or to his order in writing : N.H., Mass., Me., N.Y., 0., Mich., Wis., Kan., Neb., Md., Dak., Ariz. Such order must be proved by oath of a subscribing witness : N.H., Mass., Me., N.Y., 0., Mich., Wis., Kan., Neb., Dak., Ariz. After the death of the testator such will is to be delivered to the person named in the indorsement (§ 2691) : N.H. ; Mass.; Me.; N.Y. ; 0.; Kan.; Md. ; Ky. 113,41 ; Ark. ; Dak. If there be none, it is delivered to the surrogate : N.Y., Dak. Otherwise, or if not called for by him, it shall be publicly opened at the first probate court had after notice of the testator's death : N.Y. 3,7,7,70 ; Mich. ; Kan. ; Neb. ; Ky. ; Ark. ; Dak. Civ. C. 700 ; Ariz. Or, if the jurisdiction of the case belongs to another court, it shall be delivered to the executors or other persons entitled to the custody thereof to be by them presented for probate in such other court : Mass. ; Me. ; 0. 5920 ; Mich. 5796 ; Wis. 3784; Kan. 117,6 ; Ariz. 1500. And the judge of probate is to give notice to the executor named or persons inter- ested to present it for probate : 0. ; Mich. ; Wis. ; Kan. ; Neb. 1,23,135 ; Ai-iz. Art. 270. Nuncupative Wills. § 2700. As at Common Law. In most states, a nuncupative will may he made by a soldier in actual military service or a mariner at sea : N.H. 193,7 ; Mass. 127,6 ; Me. 74,18 ; Vt. 2044 ; R.I. 182,10 ; N.Y. 2,6,1,22 ; N.J. Wills, 16 ; Pa. Wills, 9 ; Ind. 2578 ; Mich. 5790 ; Wis. 2293 ; lo. 2325 ; Minn. 47,6 ; Neb. 1,23,129; Md. 49,11 ; Va. 118,6 ; W.Va. 1882,84,5 ; Ky. 113,7 ; Mo. 3985 ; Ark. 6505 ; Tex. 4866 ; Cal. 6289 ; Ore. 64,14 ; Civ. C. 769 ; Wash. 1329 ; Dak. Civ. C. 688 ; Mon. Prob. C. 450 ; S.C. 1880 ; Ala. 2300 ; Miss. 1269 ; Ariz. 1494. In detail, such wills (1) may be made "as before" or "without regard to this title" or " as at common law : " N.H. ; Me. ; Vt. ; R.I ; N.J. ; Pa. ; Ind. ; Mich. ; Wis. ; Neb. ; Md. 1884,306 ; Va. ; W.Va. ; Mo. ; Ark. ; Tex. ; Ore. ; Wash. ; S.C. ; Ala. ; Miss.; Ariz. {2) They may be made only of personal property, wages, movables, etc. : N.H., Mass., Me., Vt., R.I., N.Y., N.J., Pa., Ind., Mich., Wis., lo., Minn., Neb., Md., Va., W.Va., Ky., Mo., Ark., Tex., Ore., Wash., S.C, Ala., Miss., Ariz. 364 WILLS. (3) The testator must have oeen in actual contemplation or fear of aeath, or in expectation of death fr<.»m an injury received the same day : Cal., Dak., Mon. The will must have heen made within ten days of death, in the presence of two competent witnesses who were called upon to witness, and the words must he reduced to writing and signed by one of the witnesses within sixty days after the speaking : Ky. Nuncupative wills need not he in writing, nor declared or attested with any formalities : Cal. 6288 ; Dak. Civ. C. 692. Except as authorized in this article, nuncupative wills are invalid : N.Y., Md. , and so probably in the other states. § 2701. Louisiana Civil Law. The wills of persons employed in armies in the field, or in a military expedition, may be received by a commissioned officer, in presence of two wit- nesses. If the testator is sick or wounded, they may be received by the physician or surgeon attend- ing him, assisted by two witnesses. These testaments are subject to no other formalities than that of being reduced to writing, and being signed by the testator, if he can write, by the persons receiving them, and by the witnesses. The testament made in the form above prescribed shall be null six months after the re- turn of the testator to a place where he has an opportunity to employ the ordinary forms. Testaments made during a voyage at sea may be received by the captain or master, in presence of three witnesses taken by preference from among the passengers ; in default of passengers, from among the crew. The testament made at sea can contain no disposition in favor of any of the persons em- ployed on board the vessel, unless they be relations of the testator. This testament, like the preceding one, is subject to no other formality than that of being reduced to writing, and being signed by the testator, if he can write, by hiin who receives it, and by those in whose presence it is received. The testament made at sea shall not be valid unless the testator dies at sea, or within three months after he has landed in a jjlace where he is able to make it in the ordinary forms : La. 1597-1604. § 2702. By Statute, (a) In many states, any person may make a nun- cupative will of either real or personal property during his last sickness, at home (or at the place where he has resided for ten days immediately before, except in New Hampshire), or at any place if suddenly taken ill while away from home and if he dies before returning : N.H. 193,16 ; Me. 74,18 ; N.J. Wills, 11 ; Pa. Wills, 8 ; Wis. 2292 ; Neb. 1,23,128 ; N.C. 2148; Tenn. 3006 ; Mo. 3984 ; Ark. 6504 ; Tex. 1849,4862-3; Wash. 1329 ; Ga. 2479 ; Ala. 2299 ; Miss. 1266. (B) So, in others, any person may make a nuncupative will, but it must be made (1) durhig the laH sickness of the deceased: 0. 5991; lud. 2577; 111. 148,15; Kan. 117,69; Nev. 816; Col. 3183; S.C. 1876; Fla. 200,10. And (2) in the house or place where he shall die : S.C. (3) In Delaware, any person may make a nuncupative during his last illness, valid if he die within three days thereafter or do not recover sufficiently to make an ordinary will : Del. 84,.5. And in others, (4) any person in expectation of immediate death from an injury received the same day: Cal. 6289 ; Dak. Civ. C. 688 ; Mon. Prob. C. 450; Uta.« 1884,44,1,1,17. (C) In some, a verbal will may be made bj' any person, at any time, and if duly made be valid as hereinafter prescribed: Mich. 5790; lo. 2324; N.M. 1379; Ariz. 1494. (D) The custom of making verbal testaments — that is to say, resulting from the mere deposition of witnesses who were present when the testator made known to them his will, with- out his having committed it or caused it t(» be committed to writing — is abrogated. Nuncupative testaments may be made by public act or by act under private signature : La. 1576-7. Note. — "Or within twenty-four Ijours previously. NUNCUPATIVE WILLS. 365 § 2703. Execution. Ill most states, no nuncupative will is valid ** or effec- tual to pass any property unless proved by the oath of witnesses who were present and requested * by the testator to be witnesses that such was his will. In most of these states, there must be two such witnesses : N.J.* Wills, 11 ; Pa.* lVills,8; 0.^5991 ; Ind.'' 2577 ; 111.'^ 148,15 ; Mich.^ 5790; lo. 2324 ; Kan.<^ 117, 69 ; Del. 84,5 ; N.C. 2148 ; Tenn.* 3006 ; Mo.^ 3984 ; Ark.<^ 6504 ; Cal." 6289 ; Nev.-^ 816 ; Col. 3483 ; Wash.^ 1329 ; Dak.* Civ. C. 688 ; Mon.* Prob. C. 450 ; Uta.* 1884, 44,1,1,17 ; Miss.<^ 1266 ; Ariz. 1494. And in most of the others, three : N.H. 193, 16 ; Me. 74,20 ; Wis.<^ 2292 ; Neb.<^ 1,23,128 ; Tex.*^ 1850,4863 ; S.C. 1876 ; Ga.*^ 2479 ; Fla.' 200,10 ; N.M. 1381. But in one, the number is not specified : Ala.^ 2299. The wituesses must be present, see and hear the testator speak, and each one of them shall understand clearly and distinctly every part of the will: N.M. 1383. And in Illinois, there must also be two other disinterested witnesses to prove that the same was committed to writing within ten days of the death : 111. 148,15 ; and in New Mexico, also two other witnesses possessing the same qualifications to testify to the sanity of the testator. In two states, all such witnesses as are and ought to be allowed good witnesses upon trial at law by the laws and customs of the state are deemed good witnesses to prove any nuncupative will, or anything relating thereto : N.J. Wills, 15; S.C. 1878. The nuncupative testaments by public act must be received by a notary public, in presence of three witnesses residing in the place where the will is executed, or of five witnesses not re- siding in the place. This testament must be dictated by the testator, and written by the notary as it is dictated. It must then be read to the testator in presence of the witnesses. Express mention is made of the whole, observing that all those formalities must be fulfilled at one time, without interruption, and without turning aside to other acts. This testament must be signed by the testator; if he declares that he knows not how, or is not able to sign, express mention of his declaration, as also of the cause that hinders him from signing, must be made in the act. This testament nmst be signed by the \vitnesses, or at least by one of them for all, if the others cannot write. A nuncupative testament, under private signature, must be written by the testator himself, or by any other person from his dictation, or even by one of the witnesses in presence of five witnesses residing in the place where the will is received, or of seven witnesses residing out of that place. Or it will suffice if, in the presence of the same number of witnesses, the testator presents the paper on which he has written his testament, or caused it to be written, out of their presence, declaring to them that that paper contains his last will. In either ease, the testament must be read by the testator to the witnesses, or by one of the witnesses to the rest, in presence of the testator; it must be signed by thei'estator, if he knows how, or is able to sign, and by the witnesses, or at least by two of them, in case the others know not how to sign, and those of the wituesses who do not kuoAV how to sign must affix their mark. This testament is subject to no other fonnality than those above prescribed. In the country, it suffices for the validity of nuncupative testaments under private sicrnature, if the testament be passed in the presence of three witnesses residing in the place where tlie testament is received, or of five witnesses residing out of that place, provided that in this case a greater number of witnesses cannot be had : La. 1578-1583. NoTKS. — " In the noted states, wills not so executed will vet he valid to pass sums not exceeding (1) $30 : Tex. ; (2) $50 : S.C. ; (3) $80 : N.J. ; (4) $100 : N.H., Me., Pa., Miss. ; (.5) $150 : Wis., Neb. ; (6) $200 : N.C., Wash. ; (7) $250 : Tenn. ; (S) $300 ; Md. " Or one of whom was requested, in the noted states ; '^orau)'' person present. § 2704. Must be Written Out. (a) In most states, all nuncupative wills must be reduced to writing (1) within six days of the time the words are spoken : N.H. 193,16 ; Me. 74,19 ; Yt. 2043; N.J. JFills, 12; Pa. Decedents' Estates, 6; 366 WILLS. Wis. 2293; Neb. 1,23,129; Tex. 1849,4865; Ore. 64,15; S.C. 1877; Ala. 2302; Miss. 1267 ; Fla. 200,11. (2) Within three days: Del. 84,5; (3) within ten days: 0. ; Kan. ; N.C. 2148; Tenn. 3007 ; (4) within fifteen days : Ind. , Ark. 6506 ; (5) within thirty days : Mo. 3986 ; CaL 6290; Ore.; Dak. Prob. C. 30; Mon. Prob. C. 41; Uta. 1884,44,1,1,18; Ga. 2480; (6) within twenty days : 111. ; (7) within a reasonable time : Col. 3483 ; (8) within sixty days : Ivy. ; (9) at the time of execution : La. 1575. And when so reduced it must be subscribed by the witnesses : 0., Del. (B) Unless the words be written out as required above, (1) the will is absolutely void : 0., Ind., 111., Kan., Del., Ark., CaL, Ore., Dak., Uta., Ga. Or, (2) in other states, no testimony can in such event be received to prove such nuncupative will after six months from the time when the words were spoken : N.H., Me., Vt., N.J., Pa., Wis., Neb., Md., KC, Tenn., Mo., Tex., S.C, Ala., Miss., Fla. For the time within which such will must be proved, see Part IV., Division I. § 2705. Property Devisable. Such nuncupative will can dispose, in many states, only of personal property : N.H. ; Pa. ; 0. ; 111. ; Kan. ; Del. ; Col. 3483 ; Ala. 2298. So, only of personal property and wages : Me., Vt., Md. See also § 2700. And in several, no nuncupative will (except of a soldier or sailor, in Vermont, Mich- igan, and Delaware) can be effectual to pass property of a greater value than (1) $100 : Ind. ; (2) $200 : Vt. 2043 ; Del. ; Mo. 3984 ; (3) $300 : Mich. 5790; lo. 2324 ; Ariz. 1494; (4) $500 : Ark. 6504 ; Ala. ; (5) $1,000 : Cal. 6289; Nev. 816; Dak. Civ. C. 688 ; Mon. Prob. C. 450 ; Uta. 1884,44,1,1,17. But in two states, all property, real and personal, may pass by a nuncupative will properly made and proved : Ga. 2482 ; N.M. 1379. So, it would seem, in the states not mentioned above, where the laws are silent j but it may be doubted whether this would follow as to realty. Art. 271. Universal Legacies and Disinheritance. § 2710. Louisiana Law. Testamentary dispositions are either universal, under a uni- versal title, or under a particular title. Each of these dispositions, whether it be made under the name of institution of heir, or under the name of legacy, shall have its effect, according to the rules hereafter established for universal legacies, for legacies under a universal title, and for particular legacies. A universal legacy is a testamentary disposition by which the testator gives to one or sev- eral persons the whole of the property which he leaves at his decease. When at the decease of the testator, there are heirs to wliom a certain proportion of the property is reserved by law, these heirs are seized of right by his death of all the effects of the succession, and the universal legatee is bound to demand of them the delivery of the effects in- cluded in the testament. Nevertheless, in the same case the universal legatee will have the enjoyment of the effects included in the testament from the day of the decease, if the demand for the delivery has been made within a year from that period ; if not, enjoyment will only commence from the day of the judicial demand, or from the day on which the delivery has been agreed upon. When, at the decease of tlie testator, there are no heirs to whom a proportion of his prop- erty is reserved by law, the universal legatee, by the death of the testator, is seized of right of the effects of the succession, without being bound to demand the delivery thereof. When all the forced heirs have been legally disinherited, the heir instituted universally is seized in full right of the succession vpithout being bound to demand the delivery of it, in the same manner as if there were no forced heirs, conformably to what is prescribed above. The universal legatee who concurs with an heir to whom the law has reserved a certain proportion of the effects of the succession, is bound for the debts and charges of the succession personally for his part and proportion, and in case of mortgage on his part, for the whole; and he is b«)und to discharge all the legacies, saving the case of reduction : La. 1605-1611. DISINHERITANCE. 367 § 2711. Of Legacies under a Universal Title. The legacy under a universal title is that by which a testator bequeaths a certain proportion of the effects of which the law permits him to dispose, as a half, a third, or all his immovables, or all his movables, or a fixed proportion of all his immovables or of all his movables. Legatees under a universal title are bound to demand the delivery of the heirs to whom a proportion of the effects is reserved by law ; in default of heirs, of the universal legatees ; and in defiiult of those, of the uext heirs in the order established in the title : Of Successions. The legatee under a universal title is bound, like the universal legatee, for the debts and charges of the succession, personally for his part, and in case of mortgage on his portion, for the whole. When the testator has disposed only of a proportion of the disposable portion, and has done it under a universal title, the legatee under this title is bound to contribute with his natural heirs to the payment of particular legacies. In no case can the instituted heir, under whatever title he may be, claim the falcidian por- tion, — that is, the fourth which the law authorized the testamentary heir to retain from the succession, in case more than three fourths of it were absorbed by the legacies ; this right being abolished : La. 1612-1616. § 2712. Particular Legacies. Every legacy, not included in the definition before given of universal legacies and legacies under a universal title, is a legacy under a particular title. Every legacy under a particular title gives to the legatee, from the day of the testator's death, a right to the thing bequeathed, which right may be transmitted to his heirs or assigns ; and this takes place as well in testamentary dispositions, universal or under a universal title, as in those made under a particular title. Nevertheless, the particular legatee can take possession of the thing bequeathed, or claim the proceed'^ or interest thereof, only from the day the demand of delivery was formed, accord- ing to the order hereinbefore established, or from the day on which that delivery was volun- tarily granted to him. The legatee is not bound to demand the delivery of the legacy if the thing bequeathed to him is in his possession at the time of the opening of the succession, but he is bound to give it up for the purpose of contributing to the payment of debts, in case it be liable for any. Neither is the testamentary executor, who has the seizin of the effects of the succession, and who is at the same time a legatee, bound to demand the delivery of his legacy : he can retain it in his possession subject to the same restitution : La. 1625-1628. Art. 272. Disinheritance. § 2720. Louisiana Law. Forced heirs may be deprived of their legitime, or legal portion, and of the seizin granted them by law by the effect of disinherison by the testator, for just cause, and in the manner hereafter prescribed. A disinherison, to be valid, must be made in one of the forms prescribed for testaments. The disinherison must be made by name and expressly, and for a just cause, otherwise it is null. There are no just causes for disinherison but those expressly recognized by law in the fol- lowing articles. The just causes for which parents may disinherit their children are ten in number, to wit : — 1. If the child has raised his or her hand to strike the parent, or if he or she has actually struck the parent ; but a mere threat is not sufficient. 2. If the child has been guilty, towards a parent, of cruelty, or a crime of grievous injury. 3. If the child has attempted to take the life of either parent. 4. If the child has accused a parent of any capital crime, except, however, that of high treason. 5. If the child has refused sustenance to a parent, having means to aff'ord it. 6. If the child has neglected to take care of a parent become insane. 7. If the child refused to ransom them when detained in captivity. 8. If the child used any act of violence or coercion to hiniler a parent from making a will. 9. If the child has refused to become security for a parent, having the means, in order to take him out of prison. 10. If the son or daughter, being a minor, marries without the consent of his or her parents. 368 WILLS. The ascendants may disinherit their legitimate descendants coming to their succession, for the first nine causes expressed in the preceding paragraph, when the acts of ingratitude there mentioned have been committed tovA^ards them, instead of towards their parents ; but they cannot disinherit tlieir descendants for the last cause. Legitimate children, dying without issue, and leaving a parent, cannot disinherit him or her, unless for the seven following causes, to wit : — 1. If the parent has accused the child of a capital crime, except, however, the crime of high treason. 2. If the parent has attempted to take the child's life. 3. If the parent has, by any violence or force, hindered the child from making a will. 4. If the parent has refused sustenance to the child in necessity, having the means of afford- ing it. 5. If the parent has neglected to take care of the child while in a state of insanity. 6. If the parent has neglected to ransom the child vphen in captivity. 7. If the father or mother have attempted the life, the one of the other, in which case the child or descendant making a will may disinherit the one who has attempted the life of the other. The testator must express in the will for what reasons he disinherited his forced heirs, or any of them, and the other heirs of the testator are moreover obliged to prove the facts on which the disinherison is founded ; otherwise it is null : La. 1G17-1G24. Parents and ascendants have the right to disinherit their descendants for the following causes : (1) for having laid violent hands upon them, or for accursing them ; (2) for having contrived their death in any manner ; (3) for having given cause for the great waste of their estate ; (4) for having accused them of any crime for which they should suffer death, be disgraced, or ban- ished ; (5) for having access to the wife or friend [mistress] of their parent, knowing her to be such ; (6) for not furnishing them with the means to free them from prison, be- ing able to do so ; (7) for preventing them from making their will ; (8) for becoming a common prostitute before arriving at the age of twenty-one, but not if that should happen after that age ; (9) when the descendant will not succor and aid his ancestor who may have become deranged and is roaming about ; in this case his ^^roperty shall revert to the person who may have succored and aided him ; (10) for not redeeming them from their captivity, being able to do so ; (11) for denying their parents : N.M. 1416. Descendants may disinherit their ancestors (1) for having accused them of a crime punish- able with death or banishment ; (2) for having contrived their death by poison, etc. ; (3) for hav- ing carnal intercourse with the wife or friend [mistress; i.e., amiga] of the son or grandson; (4) for preventing them from disposing of their property according to law ; (5) when the husband desires the death of the wife, and vice versa ; (6) for not furnishing to their insane descendants their necessary subsistence ; (7) for not redeeming them from captivity, being able to do so: N.M. 1412. Brothers are not direct heirs of the deceased brothers ; but should the testator, having no direct heirs, interpose an infamous or degraded person, they may contest the will as null in this portion of it ; but shall lose that right (1) if they contrive the death of their brother; (2) for accusing him of a crime punishable with death, or other heavy penalty ; (3) if they have caused him the loss of a greater portion of his property: N.M. 1418. A stranger will lose his right to inherit property devised or bequeathed to him by the testator (1) when the testator received his death at the hands or by the advice of any of his associates, and he receive the inheritance knowing the facts, before complaining to the judge that the offender may be punished; but if others should cause his death, he shall receive the inheritance ; (2) if he operates under the testament before accusing the offenders, knowing who they are ; (3) if the testator received his death by the hands of such person, or by his fault or advice ; (4) for having had carnal intercourse with the testator's wife ; (5) for endeavoring to annul the will ; (6) if by request or order of the testator he delivers the inheritance to a person not allowed to inherit, knowing such person's incapacity : N.M. 1419. CONSTRUCTION. 369 CHAPTER III. — INTERPRETATION OF WILLS. Art. 280. Construction. § 2800. General Principles. The rules of interpretation in this article specified are to be observed, unless an intention to the contrary clearly appears in the will : Cal. G319; Dak. Civ. C. 722; Mon. Prob. C. 476; Uta. 1884,44,1,2,3. § 2801. Parol Evidence. In construing wills, the court may hear parol evidence of the circumstances surrounciing the testator at the time of its execution : Ga. 2457. And also parol evidence to explain all ambiguities, both latent and patent : Ga. § 2802. Ambiguities. In case of uncertainty arising upon the face of the will (patent ambiguity) as to the application of any of its provisions, the testator's inten- tion is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations : Cal. 6318 ; Dak. Civ. C. 721 ; Mon. Prob. C. 475 ; Uta. 1884,44,1,2,2. Several testamentary instruments, executed by the same testator, are to be taken and construed together as one instrument : Cal. 6320 ; Dak. Civ. C. 723 ; Mon. Prob. C. 477; Uta. 1884,44,1,2,4. All parts of a will are to be construed in relation to each other, and so as, if possible, to form one consistent whole : Cal. 6321 ; Dak. Civ. C. 724 ; Mon. Prob. C. 478 ; Uta. 1884,44,1,2,5. But when there are inconsistent provisions in the same will, the latter ones prevail : Cal. ; Dak. ; Mon. ; Uta. ; Ga. 2476. Where the meaning of any part of a will is ambiguous or doubtful, it may be ex- plained by any reference thereto, or recital thereof, in another part of the will : Cal. 6323 ; Dak. Civ. C. 726 ; Mon. Prob. C. 480 ; Uta. 1884,44,1,2,7. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and that other can be ascertained : Cal. 6324 ; Dak. Civ. C. 727 ; Mon. Prob. C. 481 ; Uta. 1884,44,1,2,8. They are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative : Cah 6352 ; Dak. Civ. C. 728; Mon. Prob. C. 482 ; Uta. 1884,44,1,2,9; La. 1713. Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy : Cal. 6326 ; Dak. Civ. C. 729 ; Mon. Prob. C. 483 ; Uta. 1884,44,1,2,10. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention : " Cal. 6327 ; Dak. Civ. C. 730 ; Mon. Prob. C. 484; Uta. 1884,44,1,2,11. They are not, however, necessary to give eflFect to any species of disposition by a will: Cal. 6328; Dak. Civ. O. 731 ; Mon. Prob. C. 485; Uta. 1884,44,1,2,12. When applying a will it is found that there is an imperfect description, or that no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence ; but evidence of the declarations of a testator as to his intentions cannot be received : Cal. 6340; Dak. Civ. C. 743; Mon. Prob. C. 497; "Uta. 1884,44,1,2,24. Note. — " See § 1474. § 2803. Intention of Testator. All courts and others concerned in the execution of wills shall have due regard to the direction of the will, and the true intent and meaning of the testator in all matters brought before them : Mo. 4008 ; Ore. 64,32 ; Wash. 1338; Ga. 2456. 24 370 INTERPRETATION OF WILLS. And to this end the court may transpose sentences or clauses, change connecting conjunc- tions, or supply omitted words in cases where the clause, as it stands, is unintelligible or inoperative, and the proof of intention is clear and unquestionable. But if the clause as it stands may have effect, it shall be so construed, however well satisfied the court may be of a diflferent testamentary intention : Ga. 2456. A will is to be construed according to the intention of the testator ; and when his intentions cannot have effect to their full extent, they must have effect as far as possible: Cal. 6317; Dak. Civ. C. 720; Mon. Prob. C. 474; Uta. 1884,44,1,2,1; La. 1712. A clear and distinct devise or bequest cannot be affected by any reasons assigned therefor, or by any other words not equally clear and distinct, or by inference or argu- ment from other parts of the will, or by an inaccurate recital of, or reference to, its contents in another part of the will : Cal. 6322 ; Dak. Civ. C. 725 ; Mon. Prob. C. 479 ; Uta. 1884,44,1,2,6. In case of ambiguity or obscurity in the description of the legatee ; as, for instance, when a legacy is bequeathed to one of two individuals bearing the same name, the inquiry shall be which of the two was upon terms of the most intimate intercourse or connection with the testa- tor, and to him shall the legacy be decreed. When, from the terms made use of by the testa- tor, his intention cannot be ascertained, recourse must be had to all circumstances which may aid in the discovery of his intention. A mistake in the name of an object bequeathed is of no moment, if it can be ascertained w'hat the thing was which the testator intended to bequeath. If it cannot be ascertained whether a greater or less quantity has been bequeathed, it must >be decided for the least : La. 1714-1717. A general legacy does not embrace the things included under the genus which have been acquired after the death of the testator, though by his order. A general legacy does not em- brace the things included under the genus which have been bequeathed in particular to other persons. A disposition couched in terms present and past does not extend to that which comes afterwards. For example, a legacy of all the books a testator possesses does not include those which he has purchased after the date of the testament : La. 1718-1720. A disposition couched in the future tense refers to the time of the death of the testator. Thus, a legacy of all the furniture there shall be in the house of the testator includes that which he has purchased since the date of the testament as well as the rest. A disposition, the terms of which express no time, neither past nor future, refers to the time of making the will. Thus, when the testator expresses simply that he bequeaths his plate to such a one, the plate that he possessed at the date of the will is only included : La. 1721-2. When a person has ordered two things which are contradictory, that which is last written is presumed to be the will of the testator in which he has persevered, and a derogation to wliat has before been written to the contrary : La. 1723. When the legacy is of an indeterminate thing, the heir is not obliged to give it of the best quality, nor can he offer it of the worst : La. 1640. § 2804. Devise to a Class. (See also § 2824.) A testamentary disposition to a class includes every person answering the description at the testator's death ; but when the possession is postponed to a future period, it includes also all per- sons coming within the description before the time to which possession is post- poned : Cal. 6337 ; Dak. Civ. C. 740 ; Mon. Prob. C. 494 ; Uta. 1884,44,1,2,21. § 2805. Conversion. When a will directs the conversion of real property into money, such property and all its proceeds must be deemed personal property from the time of the testator's death : Cal. G338 ; Dak. Civ. C. 741 ; Mon. Prob. C. 495 ; Uta. 1884,44,1,2,22. § 2806. "Will Speaks from Death. The general principle is laid down by the statutes of several states that a will is to be construed, both as to real and personal estate, as if made immediately before the death of the testator : Pa. 1879,101, 1; Va. 118,11 ; W.Va. 1882,84,10 ; N.C. 2141 ; Ky. 113,16 ; Tenn. 3035. So, CONSTRUCTION. 371 specially, words of survivorship refer to the death of the testator in order to vest remainders : Ga. 2269. Unless, in all the above states, a contrary intention appear in the will. So, specially, the legacy bequeathed shall be delivered with everything that appertains to it, in the condition in which it was on the day of the testator's decease : La. 1636. Words in a will referring to death or survivorship simply relate to the time of the testator's death, unless possession is actually postponed, when they must be referred to the time of possession : Cal. 6336 ; Dak. Civ. C. 739 ; Mon. Prob. C. 493 3 Uta. 1884, 44,1,2,20. § 2807. Form of Devise, etc." In Georgia, it is enacted that no particular words are necessary to a devise or bequest : Ga. 2454. Lend will be construed to mean " give," unless restricted by the context : Ga. An unconditional gift of the entire income of property or interest accruing from a fund will be construed into a gift of the property or fund, unless the provisions of the will require a more limited meaning : Ga. 2455. Note. — " Compare § 1474. For the execution of powers, see § 1658. § 2808. Construction of Devises, etc. (a) Every devise of real estate is, in most states, construed to convey a fee, or all the estate or interest therein, legal or equitable, which the testator could lawfully convey, unless it clearly appear by the will that the testator intended to convey a less estate (see also § 1474) : N.H. 193,4; Mass. 127,24; Me. 74,16; Vt. 2041; E.I. 182,5; Pa. Wills, 10; O. 5970; Mich. 5786 ; Wis. 2278 ; Minn. 47,2 ; Kan. 117,54; Neb. 1,23,124; Md. 49,8; Del. 84,24; N.C. 2180; Tenn. 3005; Cal. 6311; Nev. 830; Wash. 1332; Dak. Civ. C. 715 ; Mon. Prob. C. 471 ; Wy. 1882,107,2 ; Uta. 1884,44,1,36 ; Ala. 2278 ; Ariz. 1490. (B) In two others, all devises of land where the words heirs and assigns are omitted, and nothing to show that it was intended to convey an estate for life only, and no remainder over after death of the devisee, are construed to create a fee-simple : Mo. 4004 ; Ore. 64,29. So, in Indiana, every devise in terms denoting the testator's intention to devise his entire interest in all real and personal property : Ind. 2567. In a devise to a person for life, unless the remainder is especially devised to the heirs of the devisee, it reverts to the heirs of the testator : Wash. 1333. (C) In several states, a devise of the land of the testator, or bis land in a certain place or in possession of a certain person, or otherwise described in a general manner, and any other general devise which would describe a leasehold estate if the testator had no freehold estate which could be described by it, is construed to include his leasehold estate, or any part of it to which the description extends, as well as freehold estate, unless a contrary intention appear in the will : Va. 118,15 ; W.Va. 1882,84,14; Ky. 113,21. As to whether a devise is good execution of a power, see § 248. " Dying without issue " in wills. For the interpretation of these words, see § 1415. Rule in Shelley's Case. See § 1406. § 2809. After-Acquired Property. As a corollary from § 2806, it would seem to follow, in those states where that principle holds, that a will passes all the property, real or personal, which the testator possessed at the time of his death, even if acquired subsequently to the making of the will." (a) And this law is expressly enacted, as to real property, in four states : Md. 49,13 ; Tenn. 3035 ; S.C. 1850. (B) So, in many others, of all the real estate^ so acquired subsequently,^unless a contrary intention clearly appear in the will : Ct. 1885,110,130 ; N.J. TVills, 24 ; Pa. Wills, 11 ; Va. 118,2 and 11 ; Tenn. ; Cal. 6312 ; Dak. Civ. C. 719 ; Mon. Prob. C. 472 : Uta. 1884,44,1,1,37 ; Ga. 2461. 372 INTERPRETATION OF WILLS. (c) Afler-acquired real property only passes by the will when it appears in the will that such was the testator's intention : N.H. 193,2 ; Me. 74,5 ; Vt. 2040; Ind." ' 2567; lo. 2323; Cal."-^ 6331 ; Ala."'* 2277. And in others, such must ^manifestly and clearlv," or "by express terms," appear to be the testator's intention: Mass. 127,25"; RI. 182,1 ; 0.« 5969 ; Mich. 5787; Wis. 2279; Minn. 47,3; Kan.« 117,53; Neb. 1,23,125; Del. 84,25 ; Nev. 831 ; Wash. 1334 ; Wy. 1882,107,3 ; Ariz. 1491. (D) A devise of residue of the testator's real (or personal) property passes all the real (or personal) property which he was entitled to devise (or bequeath) at the time of his death, not otherwise effectually devised (or bequeathed) by his will : Cal. 6332- 3; Dak. Civ. C. 735-6; Mon. Prob. C. 489-490; Uta. 1884,44,1,2,16-17. But in Florida, a testator can only devise real property in possession or remainder or reversion at the time of the execution : Fla. 200,1. (E) A devise or bequest of all the testator's real or personal property in express terms, or in any terms denoting his intent to dispose of aU his real or personal property, passes all the real or personal property which he was entitled to dispose of by will at the time of his death : N.Y. 2,6,1,5; Cal.<^6331; Dak. Civ. C. 719 ; 734; Mon.<^ Prob. C 488; Uta.M884,44,], 2,15; Ala.-^ 2277. When the person who has bequeathed the property of an immovable, has afterwards augmented it by new purchases, the property so purchased, though it be contiguous, shall not, without a new disposition, be considered as making part of the legacy. It is otherwise as to improvements or new buildings raised on the ground bequeathed or an enclosure of which the testator has enlarged the area : La. 1637. Notes. — " The above provisions would seem to hold as to personal property in all the states with- out exception ; and in the states so noted the provision is expressly extended to personal property. 6 But in other states noted, the provision applies to personal property only. See § 2634. " As when the testator devises all his real estate, in Ind., Cal., Mon., Uta., Ala. This specification would seem to render the law of these states practically identical with those in A, and the limitations in B and G nuf^atory ; for it is obvious that, unless a testator devise or divide all his estate, or all the residue of it, any estate acquired after the will will pass as intestate estate ; not, however, because the will does not speak from the date of death, but because such after-acquired property is undevised, and will therefore pass accordingly. In these noted states, therefore, the law is practically the same as in the states which have enacted the principal provision, A. § 2810. Subsequent Conveyance, (a) In many states, it is provided that no conveyance or other act subsequent to the execution of a will, by which the tes- tator's estate is altered, but not wholly devested (except such acts of revocation as are described in § 2672 for these states respectively), shall prevent its operation with respect to such interest in the estate comprised in the will as the testator may have power to dispose of by will at the time of his death : N.Y. 2,6,1,47 ; 0. 5956 ; Ind. 2566 ; Kan. 117,33 ; Va. 118,10 ; W.Va. 1882,84,9 ; KG. 2179 ; Ky. 113,12 ; Cal. 6303 ; Dak. Civ. C. 712 ; Mon. Prob. C. 463 ; Uta. 1884,44,1,1,28. But such conveyance is, in several, deemed a revocation of the devise or bequest of the estate affected (1) if it is so expressed in the conveyance: N.Y. ; O. ; Ind. ; Kan. ; Cal. 6304; Dak. Civ. C. 713; Mon. Prob. C. 464; Uta. 1884,44,1,1,29. Or (2) when the provisions of the conveyance are totally inconsistent with the de- vise or bequest : N.Y." 2,6,1,48 ; 0.« 5957 ; Ind. ;« Kan.« 117,34 ; CaL ;" Dak.;° Mon. ; Uta." (3) In any case, even though the subsequent sale or donation be null, and the thing have returned to the testator's possession : La. 1695. And so, also, the sale made by the testator of an object bequeathed, even by act under private signature, after the date of the testament, pro- duces a revocation of the legacy, if the act be entirely written, signed, and dated with his hand : La. 1696. (b) In many, a charge or incumbrance upon any real or personal estate is not deemed a revocation of any will relating to such estate which has been previ- CONSTRUCTION. 373 ously executed ; but the devises or bequests take effect subject to such charge : N.Y. 2,6,1,46; 0. 5955; Ind. 2564; Kan. 117,32; Mo. 3967; Ark. 6498; Cal. 6302 ; bre. 64,9; Nev. 824; Wash. 1324; Dak. Civ. C. 711 ; Mon. Prob. C. 462 ; Uta. 1884,44,1,1,27 ; Ala. 2288. Unless it appear in the will or instrument that such was the intention of the testator : Ala. If, after the execution of a will devising any property, the testator make a conveyance of his interest therein, and take back a new estate therein, such new estate shall pass by his will to the person to whom the original estate or interest was devised, unless it appear from either the will or conveyance that the testator intended such conveyance to act as a revocation of the devise : Ind. 2565 ; Ala. 2289. (C) In many, any bond, contract, agreement, or covenant made by a testator to convey any property devised or bequeathed in his will, previously made, is not deemed a revocation of such devise or bequest, but the property passes under the will subject to such remedies, against the devisees or legatees, on the bond, for specific performance or otherwise, as might be had against the heirs or next of kin, had the property descended to them : N.Y. 2,6,1,45 ; 0. 5954; Ind.*'<^ 2563 ; Kan. 117,31 ; Mo. 3966 ; Ark. 6497 ; Cal. 6301 ; Ore. 64,8 ; Nev. 823 ; Wash. 1323 ; Dak. Civ. C. 710 ; Mon. Prob. C. 461 ; Uta. 1884,44,1,1,26 ; Ala.^- ' 2287. But the purchase-money, when recovered by the executor, shall be paid to the devisees : Ind., Ala. Notes. " Except when such conveyance depends on a condition or contingency which is not per- formed or does not happen. *> Except when it appears from the contract that it was intended as a revocation. <^ When any part of the consideration remains unpaid at death. § 2811. Ademption of Legacies. A legacy is adeemed or destroyed whenever the tes- tator, after making his will, delivers over the property or pays the money bequeathed to the legatee, either expressly or by implication, in lieu of the legacy given ; or when the testator conveys to another the specific property bequeathed, and does not afterwards become possessed of the same, or otherwise places it out of the power of the executor to deliver over the legacy. If the testator attempts to convey and fails for any cause, the legacy is still valid : Ga. 2463. Advancements or gifts are not to be taken as ademptions of general legacies, unless such intention is expressed by the testator in writing: Cal. 6351 ; Dak. Civ. C. 754 ; Mon. Prob. C. 508 ; Uta. 1884,44,1,2,35. If the testator exchanges the property bequeathed for other of the like character, or merely changes the investment of a fund bequeathed, the law deems the intention to be to substitute the one for the other, and the legacy shall not fail : Ga. 2464. The conversion, in whole or part, of money or property, or the proceeds of property devised to one of the testator's heirs, into other property or thing, with or without the assent of the testator, shall not be an ademption of the legacy or devise, unless the testator so intended ; but the devisee shall have and receive the value of such devise, unless a contrary intention on the part of the testator appear from the will, or by parol or other evidence : Ky. 50,3,1. So, the removal of property devised does not operate as ademption, unless such intention appear as above : Ky. 50,3,2. When the testator has bequeathed a thing belonging to another person, the legacy shall be null, whether the testator knew or knew not that the thing did not belong to him : La. 1639. § 2812. Advancement of Devises. In three states, a provision for or advance- ment to any person shall be deemed a satisfaction in whole or in part of a devise or bequest to such person contained in a previous will, if it woidd so be deemed in case the devisee, etc., were a child, or if it appear from parol or other evidence to have been so intended: Va. 118,12; W.Va. 1882,84,11 ; Ky. 113,17. § 2813. Destruction of Legacy. The legacy falls if the thing bequeathed has totally perished during the lifetime of the testator : La. 1700. It likewise falls if the thing has perished since his death, without the act or fault of the 374 INTERPRETATION OF WILLS. heir, although the latter may have delayed to deliver it, when it must equally have perished ia the possession of the legatee : La. 1701. In case of an alternative legacy of two things, if one of them perishes, the legacy subsists as to that which remains : La. 1702. The legacy of a certain object is extinguished by the loss of the object ; but if the object is only destroyed in part, as if a house bequeathed has been destroyed by fire, the legacy subsists for what remains, — that is, for the land on which it was situated : La. 1643. § 2814. Dispossession. Notwithstanding the above principles, it is laid down in a few states that when a person devises lands of which he is afterwards disseized, such lands pass to the devisee in like manner as they would have passed to the heirs had the person died intestate : N.H. 193,3 ; Mass. 127,26 ; Me. 74,4. And the devisees have all the remedies for recovery of the lands that the heirs would have had : Mass., Me. Compare also §§ 1401,2630. § 2815. Vesting of Legacies. In Georgia, words of survivorship are held to refer to the death of the testator in order to vest remainders, unless a manifest intention to the contrary appears : Ga. 2269. See also $ 2806. Testamentary dispositions, including devises and bequests to a person on attaining majority, are presumed to vest at the testator's death: Cal. 6341 ; Dak. Civ. C. 744; Mon. Prob. C. 498; Uta. 1884,44,1,2,25; La." 940. When vested, a testamentary dis- position cannot be devested unless upon the occurrence of the precise contingency pre- scribed by the testator for that purpose : Cal. 6342 ; Dak. Civ. C. 745 ; Mon. Prob. C. 499; Uta. 1884,44,1,2,26. In Maryland, where a bequest of personal property is made to a female, and directed by the will to be paid on her attaining full age, she may demand it on arriving at eighteen or being married : Md. 50,189. Where an annuity, or the interest, use, rent, or income of property, real or personal, is given by will to, or in trust for, a person for life or until the happening of a contingent event, such person is entitled to receive and enjoy the same from and after the death of the testator, unless otherwise provided in the will : Mass. 133,24 ; La. 1631. If the person entitled to siich annuity, etc., dies, or the event happens during any year, an apportionment is made of such annuity, etc., accrued in the year following such last payment : Mass. 136,25. Compare § 2027. No suit to recover such annuity, etc., can, however, be brought against the executor until one year from the time his bond was given : Mass. When a testator bequeaths the use, for life or a term of years, of any live-stock, pro- visions, wearing-apparel, or other personal property which will necessarily be consumed in the using, such bequest passes an absolute estate in such property: Ct. 1885,110,150. See $1330. Note. — " Except as to particular legatees. § 2816. Interest on Legacies. Legacies bear interest from the time when they are due and payal)le (see Probate Code) : Ky. 50,2,2 ; Cal.« 6369,6370 ; Dak." Civ. C. 767-8 ; Mon." Prob. C. 521-2 ; Uta." 1884,44,1,3,13-14. So, in case of the bequest of the interest or income of a certain sum or fund, the income accrues from the testator's death: Cal." 6366; Dak.« Civ. C. 764; Mon." Prob. C. 518; Uta." 1884,44,1, . 3,10 ; Except that legacies for maintenance or to the testator's widow bear interest from the testator's decease : Cal.,° Dak., Mon., Uta." A general legacy bears interest from the expiration of one year after the testator's death : Ga." 2460. The income, profits, or increase of specific legacies, as a general rule, go with the legacy, even though the time of enjoyment or vesting be postponed : Ga. 2459. Note. — « Unless otherwise expressly provided by the will. § 2817. Accretion. The right of accretion relative to testamentary dispositions shall no longer subsist, except as herein. Accretion shall take place for the benefit of the legatees in case of the legacy being made to several amjointly. CONSTRUCTION^. 375 The legacy shall be reputed to be made conjointly when it is made by one and the same disposition without the testator's having assigned the part of such co-legatee in the thing bequeathed. It shall also be reputed to be made conjointly, when a thing, not susceptible of being divided without deterioration, has beeu given by the same act to several persons, even sepa- rately : La. 1706-8. § 2818. Property Undevised. Undevised or unbequeathed property is, in most states, distributed like intestate estate under the laws of descent and distri- bution; Me. 74,2; E.I. 182,13; III. 39,12; Mich. 5785,5708; Wis. 2277,2281 ; Minn. 47,1 and 4; Neb. 1,23,123 and 126; Del. 89,35; Va. 119,1 ; W.Va. 1882, 94,1 ; Tex. 1948 ; Cal. 6270 ; Col. 3521 ; Dak. Civ. C. 683 ; Mon. Prob. C. 432 ; Uta. 1884,44,1.1,2 ; Ala. 2281 ; Miss. 1274; Fla. 2,33; 92,13; La. 1709 ; Ariz. 1489,1492. Compare also § 3010. The same law applies to property acquired since the execution of the will, and which does not pass under it, according to the provisions of § 2809 : R.I. 187,21. So, of course, in all states. Or to legacies and devises unaccepted by the legatee : La. But in Rliode Island, in making the division of undevised property, devises or bequests made in the will to the heirs inheriting such property are to be treated like advancements. § 2819. Devise of Mortgaged Property. When any person shall have devised his estate, or any part thereof, and any of his real estate subject to a mortgage executed by such testator shall descend to an heir or pass to a devisee, and no specific direction is given in the will for the payment of such mortgage, if such testator shall have charged any particular part of his estate, real or personal, with the payment of his debts, such morcgage shall be considered a part of such debts : Ind. 2573. If the will contain no direction as to what part of his estate shall be taken for the payment of debts, and any part of his personal estate shall be unbe- queathed or undisposed of by his will, such mortgage shall be included among his debts, to be discharged out of such estate : Ind. For other states, see Payment of Debts in the Probate Code, Part IV. If prior to the testament or subsequently the thing has been mortgaged by the testator for his own debt or for that of another, or if it be burdened with an usufruct, he who is to pay the legacy is not bound to discharge the thing bequeathed of the incumbrance, unless he be re- quired to do it by an express disposition of the testator : La. 1638. Legatees under a universal title and legatees under a particular title benefit by the failure of those particular legacies whicli they were bound to discharge : La. 1704. § 2820. Devises with Charge. When any property shall be devised subject to or upim the payment by the devisee to another of a sum of money, or his doing some other thing, the latter shall have a lien on the legacy for the sum so to be paid, or the value of the thing to be done : Ky. 50,2,3. See also in Probate Code. § 2821. Disclaimer. A devisee may disclaim by deed acknowledged or proved and re- corded in the clerk's office of the county where probate was had, within a year after notice of probate : Ky. 50,2,4. § 2822. Failure or Lapse, (a) In many states, when a devise lapses by death of the devisee, or is void, or is for any reason incapable of taking effect, the real estate comprised in it passes under the residuary devise, if any : Pa. 1879,101,2 ; Va. 118,14; W.Va. 1882,84,13; N.C. 2142. Unless a different disposition is required by the will : Va., W.Va., N.C. And if no such residuary devise, it goes to the heirs-at-law : W.Va. (B) But in one other, both real and personal estate, in such case, are not included in the residuary devise, but pass like intestate estate, unless a contrary intention appear in the will : Ky. 113,20. (C) Except as provided in § 2823, if a devisee or legatee dies during the lifetime of 376 INTERPKETATION OF WILLS. the testator, the testamentary disposition to him fails (unless an intention appears to substitute some other in his place : Cal., Dak., Mon., Uta.) : Cal. 6343 ; Dak. Civ. C. 746 ; Mon. Prob. C. 500; Uta. 1884,44,1,2,27 ; La. 1697. The death of a devisee or legatee of a limited interest before the testator's death does not defeat the interests of persons in remainder who survive the testator : Cal. 6344; Dak. Civ. C. 747; Mon. Prob. C. 501 ; Uta. 1884,44,1,2,28. If a devise be made to two or more persons jointly, and one or more of them die without issue, the part so devised to him does not go to the other joint devisees, but to the heirs-at-law, unless the will otherwise provide : W.Va. 1882,84,12. Any real estate devised to a person or corporation incapable of taking it descends to the nearest of kin capable of taking ; or if he have no heirs competent to take, to the residuary devisee ; if none, to the husband or wife ; if none, it escheats : Ala. 2276. Every testamentary disposition made on a condition depending on an uncertain event, so that in the intention of the testator the disposition shall take place only inasmuch as the event shall or shall not happen, is without effect, if the instituted heir or the legatee dies before the accomplishment of the condition : La. 1698. A condition which, in the intention of the testator, does but suspend the execution of the disposition, does not hinder the instituted heir or the legatee from having a right acquired and transmissible to his heirs : La. 1699. The testamentary disposition falls, when the instituted heir or the legatee rejects it, or is incapable of receiving it: La. 1703. Legatees under a universal title, and legatees under a particular title, benefit by the failure of those particular legacies which they were bound to discharge : La. 1704. § 2823. Representation by Legatee's Heirs. (a) 111 most states, when a devise or bequest is made to a child or other descendant of the testator, and such de- scendant die first, leaving issue who survive the testator, such issue take the estate left to the parent or ancestor: N.H. 193,12 ; Mass. 127,23 ; Me. 74,10 ; Vt. 2244; RI. 182,14; N.Y. 2,6,1,52; N.J. Wills, 20 ; Pa. Wills, 14; 0. 5971; Ind. 2571 ; Mich. 5812 ; Wis. 2289 ; lo. 2337 ; Minn. 47,25 ; Kan. 117,55 ; Neb. 1,23, 151 ; Md. 49,7 ; Va. 118,13 ; W.Va. 1882,84,12 ; KC. 2144 ; Ky. 113,18 ; Tenn. 3036,3276 ; Mo. 3971 ; Ark. 6502 ; Tex. 4871 ; Cal. 6310 ; Ore. 64,12 ; Nev. 829 ; Col. 3489 ; Wash. 1327 ; Dak. Civ. C. 716 ; Mon. Prob. C. 470 ; Uta. 1884,44, 1,1,35 ; Ga. 2462 ; Ala. 2290 ; Miss. 1265 ; Ariz. 1505. So, in two others, hut only when the devise or bequest is made to a child or grand- child of the testator: Ct. 1885,110,134; 111. 39,11; or a brother or sister : Ct. So, in one other, but only when made to a child of the testator : S.C. 1865 ; 1883,200. (b) So, in many, when the devise or bequest is made to any relation of the testator, his issue take as above : N.H., Mass., Me., Vt., RI., 0., Mich., Wis., lo., Minn., Kan., Neb., Md., Va., W.Va., Ky., Tenn., Mo., Cal., Ore., Nev., Wash., Dak., Mon., Uta., Ga., Ariz. So, in one, only when the devise is made to brothers or sisters, or children of deceased brothers or sisters, when there are no lineal descendants oi the testator : Pa. Wills, 2815. (c) And in several, the principle is extended to the case of a devise or be- quest to any person whatever, and the issue of such person take accordingly : N.H., RI., lo., Md., Va., W.Va., Ky., Tenn., Ga. Unless a different disposition is made by the will: N.H. ; Mass. ; N.J. ; Pa. ; 0. ; Mich.; Wis. ; lo. ; Minn. ; Kan. ; Neb. ; Va. ; W.Va. ; N.C. ; Ky. ; Tenn. 3277 ; Ariz. So, (D) when a devise is made to several as a class, or as tenants in common, or as joint tenants, and one or more of the devisees shall die before the testator, and another or others survive the testator, the share or shares of such as so die shall go to his or their descendants, if any ; if none, to the surviving devisees, unless a different disposition is made by testator : Ky. 50,2,1. And (E) a devise to children embraces grandchildren, when there are no children, and no other construction will give effect to the devise : Ky. CONSTRUCTION. 377 (P) If such devisee leave no issue, aud the devise be of a residuary estate to him or her and other child or relative of the testator, the estate devised passes to such residuary devisee sur- viving the testator, unless a diflferent disposition is required by the will : 0. 5971. (G) But in two states, such devise or legacy lapsing by death of such child, etc., without issue, is regarded in all respects as intestate estate : III., Col. § 2824. "Words of Pxirchase. A testamentary disposition to " heirs," " relations," " nearest relations," " representatives," " legal " or " personal representatives," " family," " issue," " descendants," " nearest " or " next of kin," of any person, without other words of qualification, and when the terms are used as words of donation, and not of limita- tion, vests the property in those who would be entitled to succeed to the property of such person according to the laws of descent and distribution : Cal. 6334 ; Dak. Civ. C. 737; Mon. Prob. C. 491 ; Uta. 1884,44,1,2,18. The terms above mentioned are used as words of donation, and not of limitation, when the property is given to the person so designated directly, and not as a qualifica- tion of an estate given to the ancestor of such person : Cal. 6335 ; Dak. Civ. C. 738 ; Mon. Prob. C. 492 ; Uta. 1884,44,1,2,19. § 2825. Conditions. A conditional disposition is one which depends upon the occurrence of some uncertain event by which it is either to take effect or be defeated : Cal. 6345; Dak. Civ. C. 748; Mon. Prob. C. 502; Uta. 1884,44,1,2,29. A condition precedent in a will is one which is required to be fulfilled before a par- ticular disposition takes effect : Cal. 6346 ; Dak. Civ. C. 749 ; Mon. Prob. C. 503 ; Uta. 1884,44,1,2,30. Where a testamentary disposition is made upon a condition precedent, nothing vests until the condition is fulfilled, except where such fulfilment is impossible ; in which case the disposition vests, unless the condition was the sole motive thereof, and the im- possibility was unknown to the testator, or arose from an unavoidable event subsequent to the execution of the will : Cal. 6347 ; Dak. Civ. C. 750 ; Mon. Prob. C. 504 ; Uta. 1884,44,1,2,31. Such condition is deemed performed when the testator's intention has been sub- stantially, though not literally, complied with : Cal. 6348 ; Dak. Civ. C. 751 ; Mon. Prob. C. 505 ; Uta. 1884,44,1^^2,32. A condition subsequent is where an estate or interest is so given as to vest immedi- ately, subject only to be devested by some subsequent act or event : Cal. 6349 ; Dak. Civ. C. 752 ; Mon. Prob. C. 506 ; Uta. 1884,44,1,2,33. For time of payment, see Probate Code. In Georgia, it is enacted that limitations over" upon the marriage of the widow are valid, unless manifestly intended to operate as a restraint upon the free action of such widow in respect to marriage, and not simply prudential provisions for the protection of the interest of children or others in such event ; in such cases they are void : Ga. 2272. See § 1364. In Indiana, a devise or bequest to a wife, with a condition in restraint of marriage, shall stand, and the condition is void : Ind. 2567. lu Georgia, a condition in terrorem is declared void, un- less there is a limitation over to some other person ; in which event the latter takes : Ga. 2466. Conditions impossible are void : Ga. ; La. 1519. So, conditions illegal : Ga., La. So, conditions against public policy : Ga., La. Any testator owning real estate may bequeath it to his children and their issue, whether born before or after the will, and prohibit its alienation during the lives of such children and issue ; and the will takes effect accordingly : Ariz. 1517. For other states, compare §§ 1363,4104. Note. — " Whether in a deed or will. § 2826. Election. In Georgia, the general principle is laid down that a legatee taking under a will must allow, as far as he can, all the provisions of the will to be executed. If lie has an adverse claim to the will he wiU be required to elect whether he will claim under the 378 INTERPRETATION OF WILLS. will or against it. But the mere fact of being a creditor does not constitute a case of election : Ga. 2465. § 2827. Cy-Pr63 Doctrine. In Georgia, in aU cases of charitable or public deviso.<5, where there is a general inteutiou manifested by the testator to effect a certain purpose, and the particular mode in which he directs it to be done fails from any cause, a court of chancery may, by approximation, effectuate the purpose in a manner most similar to that indicated by the testator : Ga. 2468. See also ^ 1709. Art. 284. Omissions in Wills. § 2840. Omission of the "Widow in a "Will made before Marriage. In many states, the will is absolutely void in such case, because revoked by subsequent marriage ; see § 2676. But in many others, the widow is entitled to her share of the real and personal property as if her husband had died intestate ; and, except as against the widow, the will is good: Pa. Wills, 18 ; Del. 84,23 ; see Art. 326. So, in other states, the widow may waive the will and take her dower or intestate share accordingly, see §§ 3262-3. § 2841. Omission of the "Widow in a "Will made after Marriage. It is, in two states, specially provided that she shall take her interest, without waiver, as if the hus- band had died intestate : N.H. 202,8 ; Va." 119,12. And in all other states, she has a remedy by waiving the will, according to Art. 326. Note. — " As to personal property only ; in real estate she will take her dower. § 2842. Omission of Children born before the "Will, (a) In many states, when a testator omits to provide in his will for any of his children, or for the issue of a deceased child, they take (subject to the following limitations) tlie same estate they would have been entitled to had he died intestate : N.H. 193,10 ; Mass. 127,21 ; Me. 74,9 ; Vt. 2242 ; Mich. 5810 ; Wis. 2287 ; Minn. 47,23 ; Neb. 1,23,149 ; Mo. 3969 ; Ark. 6500 ; Cal. 6307 ; Ore. 64,10 ; Nev. 826 ; Wash. 1325 ; Dak. Civ. C. 715 ; Mon. Prob. C. 467 ; Uta. 1884,44,1,1,32 ; Ariz. 1503. Unless (1) they have been provided fur by the testator in his lifetime : Mass. (2) Unless they have had an equal x>orUon of the estate bestowed on them in the testator's lifetime by ad- vancement : Me. ; Mo. 3970 ; Mon. ih. 469. (3) Unless it appear that the omission was inten- tional and not occasioned by accident or mistake : N.H., Mass., Me., Cal., Nev., Dak., Mon., Uta. (4) Unless the child be expressly excluded and not merely pretermitted : Mo., Ark., Ore., Wash. (B) But in a few, they do not take as above unless it appear that the omission was made by accident or mistake : Vt., Mich., Wis., Minn., Neb., Ariz. (C) In two states, when a testator, at the time of executing his will, had a child absent and reported dead, such child takes the same share as if his father had died intestate : 0. 5961 ; Kan. 117,39. But if such child's issue were provided for in the will, he shall, in lieu of the intestate share as above, take such provision or such part thereof as the court think just : 0., Kan. In one, if the testator has a child or grandchild living at his death, whom then, and at the time of execution of the will, the testator believed dead ; or if a child die out of the State with- out knowledge of the testator, leaving issue of which the testator has no knowledge at such time, and no provision for the exclusion of such child, grandchild, or issue is made by the will, the child, grandchild, or issue shall take as if the testator had died intestate, as a pretermitted child: Ky. 113,19. But the presumption that such pretermission was the result of mistake on. the part of the testator may be rebutted by parol or other proof : Ky. § 2843. Omission of Children born after the "Will, (a) In many states, where a testator has a child born after his making a will, and had no child or issue OMISSIONS IN WILLS. 379 born before, the will is absolutely void ; and iu some other states, the will is abso- lutely void when both the marriage and the birth of the child were subsequent to the execution of the will. See § 2676. (b) But in most states, when a child living or leaving issue at the testator's death was born after the execution of the will (there being other children born be- fore in the noted " states), such child (whether posthumous or not ; see § 2844) or issue (subject to the following limitations) take the share to which they would have been entitled had he died intestate ; and the will is otherwise valid : N.H.^ 19o, 10 ; Mass.* 127,21 ; Me.* 74,9 ; Vt. 2241 ; E.I.* 182,12 ; N.Y. 2,6,1,49 ; N.J." Wills, 19 ; Pa.* Wills, 18 ; 0.« 5961 ; 111.* 39,10 ; Mich.* 5809 ; Wis.* 2286 ; Minn.* 47,22 ; Kan.« 117,39 ; Neb.* 1,23,148-9 ; Del.* 84,12 ; Va.« 118,17-18 ; W.Va.« 1882,84,17 ; KC* 2145 ; Ky.« 113,25 ; Tenn.* 3033 ; Mo.* 3969 ; Ark* 6499, 6500; Tex.« 4868,4870 ; Cal* 6306 ; Ore. 64,10; Nev.* 825 ; Col. 3488; Wash.* 1325 ; Dak.* Civ. C. 715 ; Mon.* Prob. C. 466 ; Uta.* 1884,44,1,1,31 ; S.C* 1863-4 ; Ala.* 2284; Miss.« 1263-4; Ariz.* 1502. Unless (1) they have been provided for by the testator in his lifetime : Mass., N.Y., N.J., Va., W.Va., N.C., Ky., Tenn., Ark., Tex., Dak., Miss. ; (2) unless their full share, as in § 2843, was given thern by advancement : Mo. 3970; Cal. ; Ore. 64,11 ; Mon. Prob. C. 469 ; (3) or provision was made in the will : N.H., Me., R.L, N.Y., 0., Mich., Wis., Neb., Del., Va., W.Va., Mo., Ark., Tex., Cal., Mon., Uta., S.C, Ala. And unless (4) it appear that the omission was intentional and not occasioned by accident or mistake : Mass.; Me.; Vt. 2241 ; N.Y. ; 111.; Mich.; Wis.; Minn.; Neb.; Tenn. ; Nev. ; Col. ; Miss. ; Ariz. So, in others, they will inherit as above (5) unless expressly excluded, and not merely pretermitted : N.H., N.Y., N.J., Va., W.Va., Ky., Tenn., Mo., Ark., Tex., Cal., Ore., Wash., Dak., Mon., Uta., Miss. In determining the share of a child under these last two sections, advance- ments made to a party interested are to be deemed portion of the whole estate, and charged to the party receiving them : 0. 5962 ; Kan. 117,40 ; Cal. 6309 ; Nev. 828 ; Wash. 1326 ; Dak. ; Uta. 1884,44,1,1,34; N.C. 1483. See § 3162. * (C) If such child die (before receiving his portion, in Alabama) without issue at death, such portion, or so much thereof as has not been received, passes by the will as if such child had not been born : Ala. 2286. So, in others, if he also die unmarried and under age : Va. ; W.Va. ; Ky. 113,25 ; see § 2676. Notes. — « This law apiilies, iu states so noted, only when there are living other children horn before such child who was born after the will. * But the law is the same, in the states so noted, whether there were other children born before or not. Of course, in the latter case, the effect is like a total revocation of the will ; compare § 2676. § 2844. Posthumous Children, (a) Generally, for purposes of descent or dis- tribution, posthumous children are considered as living at the death of the father, and it follows from this that a posthumous child takes under § 2843, like any other clnld born after the making of the will ; see §§ 1412, note ", 1413,2621,3023. And in many states, express provision is made to this effect : E.I. 182,12 ; N.Y. 2,6, 1,49 ; N.J. Descent, 8 ; Pa. Wills, 18 ; Neb. 1,23,148 ; Del. 84,22 ; Va. 118,17 ; Ky. 113,24-5; Tenn. 3033,3275; Mo. 3969; Ark. 6499; Tex. 4867; Ore. 64,10 ; Wash. 1325 ; Uta. 1884,44,1,1,31 ; S.C. 1846,1863 ; Ala. 2282 ; Miss. 1263. (B) But in other states, there is a slight distinction between the rights of a posthu- mous child and one born after the will but before the father's death. Thus, in a few, tlie posthumous child will take his share as if the father had died intestate in all cases; unless (1) provision has actually been made for him in the will or otherwise : N.H. 193,10; Mass. 127,22; Me. 74,8; lo. 2334; (2) unless expressly excluded by the father's will : N.H. 380 INTESTATE SUCCESSION. CHAPTER IV. — INTESTATE SUCCESSION. Art. 300. General Principles. § 3000. Definitions. Inheritance is, iu two states, defined to mean real estate as defined in $ 3010 descended according to this chapter : N.Y. 2,2,27; Ark. 2541. The person who has become the universal successor of the deceased, who is possessed of all his property and rights, and who is subject to the charges for which the estate is responsible, is called the heir, no matter whether he be such by law, by the institution of a testament, or otherwise : La. 884. Whenever in this chapter a person is described as " living" or " having died," it means at the time of the death of the intestate from whom the estate descends (allowance being made fur posthumous children or a person en ventre sa mere at the time, under the rules of H 2621, 2844) : N.Y. 2,2,28; 0. 4178; Ark. 2542; N.M. 1424. Compare ^ 1415. Issue. This word, in the chapters regulating descent and distribution of intestate property, is expressly declared to mean all the lawful lineal descendants of an ancestor: N.H. 1,19; Mass. 3,3; Me. 1,0; Vt. 8; Wis. 4971 ; lo. 45; Minn. 4,1 ; Kan. 104,1 ; Del. 85,2; Ore. 10,14; Col. 3141 ; Wash. 3314 ; Mon. G. L. 145; Ariz. 3. § 3001. When Succession Takes Place. The common case of succession is from persons dying intestate. If there is no testament or institution of heir, or if the institution is null or without efi'ect, the succession is then open in favor of the legitimate heu"s, by the mere operation of the law : La. 886. Art. 301. What Descends. § 3010. Estate Descendible, (a) Generally, the real estate and personal estate undevised or unbequeathed by the decedent which he possessed at his death," descends or is distributed (subject to the payment of debts and the widow's or husband's dower or curtesy rights, and the payment of legacies, if any, and administration expenses) as in this chapter provided : N.H. 203,1 ; Mass. 125,1 ; Me. 75,1 ; Vt. 2230 ; R.I. 187,1 and 9 ; Ct. 18,11,1,2,5 ; N.Y. 2,2,1 and 20 ; N.J. Desce^it, 1 ; Orph. Ct. 146 ; Pa. Intestates, 1 ; 0. 4176 ; Ind. 2467, 2405,2481 ; 111. 39,1 ; Mich. 5847,5783 ; Wis. 2276 ; lo. 2453 ; Minn. 46,1 ; Kan. 33,1 ; Neb. 1,23,40 and 176 ; Md. 47,1 and 28 ; Del. 85,33; Va. 119,1 and 10; W.Va. 1882,94,1 and 9 ; N.C. 1282 ; Ky. 31,11 ; Tenn. 3278 ; Mo. 2161 : Ark. 2522 ; Tex. 1645 ; Cal. 6384,6386 ; Ore. 10,1-2 and 14 ; Nev. 794 ; Col. 1039 ; Dak. Civ. C. 777-8 ; Ida. Prob. C. 315 ; Mon. Prob. C. 532 and 534 ; Wy. 42,1 ; Uta. 1884,44,2,1 ; Ga. 2570,2483 ; Ala. 2252 ; Fla. 92,1 ; N.M. 1410 ; Ariz. 1463. In New Mexico and Louisiana, only the aequest property descends. See Art. 340. And in detail, the following species of property descend accordingly: (1) equitable estates, or the estates of a beneficiary in trust, real or personal : N.Y. 2,2,21 ; Del. 85,1 ; Miss. 1272; (2) fees-simple : Md., Del., Ore., Wash,, Ariz. ; (3) fees-simple con- ditional : Md. ; (4) fees tail general descend in fee-simple (compare § 1313) : Md. ; (5) estates of inheritance: Miss. 1271. The succession not only includes the rights and obligations of the deceased, as they exist at the time of his death, but all that has accrued thereto since the opening of the succession, as also the new charges to which it becomes subject : La. 873. WHAT DESCENDS. 381 The right of possession which the deceased had, being continued in the person of his heir it results that this possession is transmitted to the heir with all its defects, as well as all its ad- vantages, the change in the proprietor producing no alteration in the nature of the possession. Thus the extent of the rights of the deceased regulates those of the heir, who succeeds to all his rights which can be transmitted ; that is, to all those which are not, like usufruct, attached to the person of the deceased. The heir being considered as having succeeded to the deceased from the instant of his death, the first effect of this right is that the heir transmits the succession to his own heirs with the right of accepting or renouncing, although he himself have not accepted it, and even in case he was ignorant that the succession was open in his favor : La. 943-4. (6) In Maryland, the legal estate of a bare trustee of real estate, entitled to no beneficial interest, descends to his heir at common law (i. e., his eldest son, etc.) : Md. 47 24. See for other states, in the Probate Code. (B) In several states, real estate, under this and the following chapter, is defined to include every estate, interest, and right, legal or equitable, in lands, tenements, and hereditaments: N.Y. 2,2,27 ; N.C. 1281 (12) ; Ark. 2180 ; Ore. 10,14; Col. ; Wash. 3302,3314; of which the intestate died seized: Mass.; Minn. 46,1 ; Ark. 2540; Miss. 1271; Ariz. In a few states, estates for the life of another descend like other real estate : Mass. ; Wis. 2270; Minn.; Neb. 1,23,30; N.C. 1281 (11) ; Ore.; Wash.; Ariz. For other states, see §§ 1310,1335. In Ohio, permanent leasehold estates, forever renewable, descend like fees : 0. 4181. In most states, the dower estate, on the expiration of the term of dower, is to be distributed "in the same manner:" E.I. 187,23; Ct. 1885,110,200; Ark. 2593. So, probably, in all. Compare §§ 3106,3110. In many states, moneys due on life-insurance policies descend in a peculiar manner. See in Part III. Note.— " Such estate is generally understood to apply only to separate estate held by the intes- tate (so far as the shares of the husband or widow are concerned) : Cal. 6400 ; Nev. 803 ; Wash. 3316 • 3304 ; Ida. Prob. C. 324; Men. Prob. C. 549 ; Uta. 1884,44,2,17. For Coynmimity Property, see Art! 340. § 3011. What does not Descend. The above provisions do not, however, extend (1) to estate otherwise limited by marriage settlement (Art. 644) : N.J. Descent, 6 ; Pa. ; Mich. ; Wis. ; Neb. ; Md. 47,28 ; ]\Io. ; Ark. ; Cal. ; Nev. ; Col. ; Dak. ; Ida. ; Mon. ; Wy. ; Uta. 1884,44,2,3 ; (2) to homestead estates (see Part IV.) : N.H., Mass., Kan. ; (3) to articles or property taken for the widow and children's allowance (Part. IV., Division I.) : Mich., lo,, Kan., Neb,, Ore. ; (4) to such estates as were determined by the intestate's death : N.Y., Ark. ; (5) to estates for the life of another : N.Y., Mich., Ark. ; see §§ 1310,1335 ; (6) to leases for years: N.Y., Ark. (see § 1340); (7) and moneys due on life policies held by the decedent descend in a special manner in a few states ; see in Part III. § 3012. Accretion. The portion of the heir renouncing the succession goes to his co- heirs of the same degree ; if he has no co-heirs of the same degree, it goes to those in the next degree. This right of accretion only takes place in legal or intestate successions. In testamentary successions it is only exercised in relation to legacies, and in certain cases. The accretion operates of full right independently of the will of the person for whose benefit it is, and whether he be ignorant or not of the renunciation which gave rise to it. He in whose favor the right of accretion exists cannot refuse the portion of the heir who has renounced, and keep that part which has fallen to him in his own right, because he is bound to accept or renounce for the whole. The rule contained in the preceding paragraph admits of an exception when the heir who has already accepted has caused his acceptance to be rescinded ; for in this case his co-heirs may refuse the porti(m which he has thus abandoned, and release themselves from the debts with which it is incumbered by abandoning this portion to the creditors. 382 INTESTATE SUCCESSION. The accretion is for the benefit of the heirs who have accepted, or who may a(^cept. An heir who has once renounced has no claim to the portion of hiin who afterwards renounces. The heirs to whom the portion comes by the renunciation of their co-heirs talie it in the same proportion tliat they do the inheritance. The partition of it is made among them in their own right or by representation, in the same manner as the succession is divided : La. 1022-8. Heirs who have embezzled or concealed effects belonging to the succession lose the faculty of renouncing ; and they shall remain unconditional heirs, notwithstanding their renunciation, and shall have no share in the property thus embezzled or concealed. The faculty of accepting or renouncing a succession becomes barred by the lapse of time re- quired for tlie longest prescription of the rights to immovables. So long as the prescription of the right of accepting is not acquired against the heirs who have renounced, they have the faculty still to accept the succession, if it has not been accepted by other heirs, without prejudice, however, to rights which may have been acquired by third persons upon the property of the succession, either by prescription or by lawful acts done with the administrator or curator of the vacant estate. In like manner, so long as the prescription of renunciation is not determined, the heir may still renounce, provided he has done no ?ct to make himself liable as heir : La. 1029-103L The joint heir or legatee has the right of accretion when, in case the heirs are called to- gether for the same object by the testatf)r, the portion belonging to the absent person remains vacant. The following requisites are necessary: (1) that some of the joint heirs or legatees are absent; (2) that they are called together for the same object [que los co-herederos 6 co-lega- tarios esten juntos, esto es, llamados a una misma cosa] ; otherwise the inheritance or legacy of the absentee becomes vacant, and reverts to the legal heirs of the deceased : N.M. 1470. Art. 302. Heirs. § 3020. Definitions. Direct heirs are the legitimate children and descendants of the decedent dying intestate : N.M. 1432. There are three classes of legal heirs, to wit : — The children and other lawful descendants. The fathers and mothers and other lawful ascendants. And the collateral kindred : La. 887. Testamentary heirs are those persons who are appointed by the testator to succeed him after his death in his property and rights : N.M. 1431. The universal heir is the person suc- ceeding to all his property ; the person receiving a specified article is a special heir, or legatee : N.M. There are three kinds of heirs which correspond with the three species of successions de- scribed in the preceding articles, to wit : — Testamentary or instituted heirs ; Legal heirs or heirs of the blood ; and. Irregular heirs. He who is the nearest relation to the deceased capable of inheriting is presumed to be heir, and is called the presumptive heir. This quality is given to him before the decease of the person from whom he is to in- herit, as well as after the opening of the succession, until he has accepted or renounced it. Heirs are divided into two classes, according to the manner in which they accept succes- sions left to them, to wit : unconditional and beneficiary heirs. Unconditional heirs are those who inherit without any reservation, or without malting an inventory, whether their acceptance be express or tacit. Beneficiary heirs are those who have accepted the succession under the benefit of an inven- tory regularly made. The person who has become the universal successor of the deceased, who is possessed of all his property and rights, and who is subject to the charges for which the estate is respon- sible, is called the heir, no matter whether he be such by law, by the institution of a testament, or otherwise : La. 879-884. The law does not take into consideration the origin nor the nature of the property in order to regulate the succession : La. 885. HEIRS. 383 § 3021. Capacity of Heirs." The incapacity of heirs is the absence of those qualities required in order to inherit at the moment the succession is opened. He who wants these qualities at this time cannot be the heir. It is at the moment of the opening of the succession that the capacity or incapacity of the heir who presents himself to claim the intestate succession is considered. All persons, even minors, lunatics, persons of insane mind, and the like, may transmit their estates ab intestato and inherit from others. The incapacity of heirs is not presumed. He who alleges it must prove it. In order to be able to inherit, the heir must exist at the moment that the succession be- comes open : La. 950-3. They are called unworthy in matters of succession who, by the failure in some duty towards a person, have not deserved to inherit from him, and are in consequence deprived of his succession : La. 964. Note. — « See also § 3135. § 3022. Acceptance by Heir. The heir or the legatees have the privilege of accepting or refusing the inheritance : N.M. 1420. Though the succession be acquired by the heir from the moment of the death of the deceased, his right is in suspense until he decide whether he accepts or rejects it : N.M. 1443; La. 946. If the heir accept, he is considered as having succeeded to the deceased from the moment of his deatli ; if he rejects it, he is considered as never having received it. The heir who accepts is considered as having succeeded to the deceased from the moment of his death, not only for the part of the succession belonging to him in his own right, but for the parts accruing to him by the renunciation of his co-heirs in the succession of the deceased. When all the heirs in the nearest degree renounce the succession, which is accepted by those in the next degree, these last are considered as having succeeded directly and immediately to the rights and effects of the succession from the moment of the death of the deceased. Therefore the heirs, thus succeeding by the renunciation of relations nearer in degree, trans- mit the succession to their own heirs, if they die before having accepted it, in the same manner as if they had succeeded in the first degree to the deceased. Natural children and the surviving husband or wife before being put into possession of the estate left to them, are not considered as having succeeded to the deceased from the instant of his death ; but they do not the less transmit their rights to their heirs, if they die before having made their demand to be put into possession. The reason is, that this sort of heirs having only a right of action to cause themselves to be put into possession of successions thus fiilling to them, this right and this action form a part of their succession, which they transmit to their heirs : La. 946-9. All the rules relating to the acceptance, renunciation, or partition of successions, the collation of goods and payment of debts, contained in this title, are applicable to testamentary as well as to intestate successions. No one can be compelled to accept a succession, in whatever manner it may have fallen to him, whether by testament or the operation of law. He may, therefore, accept or renounce it. It shall not be necessary for minor heirs to make any formal acceptance of a succession that may fall to them, but sucli acceptance shall be considered as made for them with benefit of in- ventory by operation of law, and shall in all respects have the force and effect of a formal acceptance. To be able to accept a succession, it is necessary that the succession should be open by the death of the person who is to be succeeded. If, therefore, on the false report of the death of a person, his relation, who is to inherit from him, assumes the quality of his heir, and is put into possession of his effects, these acts do not render his relation his heir, even after his death, unless since his death, his relation has continued to act as his heir. A person cannot accept a succession befDre it has fallen to him. Thus, a relation to the deceased in the second degree can neither accept nor renounce the suc- cession, until he who is related in the first degree has expressed his intention on the subject. And in testamentary successions, the heir ab intestato can neither accept nor renounce, until the instituted heir has decided to accept or renounce the succession. It is not sufficient that the succession be fallen ; it is also necessary, for the validity of the acceptance, that the heir know in a certain manner that it is opened or fallen to him. 384 INTESTATE SUCCESSION. Thus, he who is ignorant of the death of the deceased, though the succession be really opened, can neither accept nor renounce it. If the heir ab intestato accepts the succession, under the impression that there is no will, his acceptance is null, if a will be discovered of the existence of which he was ignorant. He who accepts ought to know under what title the succession is left to him, so that if the instituted heir accepts the succession as coming to him ab intestato, the act is null. It is sufficient to establish the validity of the acceptance, that the heir knows that the suc- cession is opened, and that he is called to it. It is not necessary that he should know what portion of it is left to him. It is of no moment if he be mistaken as to the degree of relationship which he bears to the deceased, and which gives him the right to inherit from him ; though it may affect the amount of the portion coming to him, his acceptance is not the less valid on that account, since he is an heir. The acceptance or rejecticm made by the heir, before the succession is opened or left, is absolutely null and can produce no effect ; but this does not prevent the heir who has thus accepted, from accepting or rejecting validly the succession when his right is complete. The heir who is instituted under a condition, cannot accept nor renounce the succession, be- fore the condition has happened, or while he remains in ignorance of the condition having happened. It is the same, if he be ignorant of the institution which is made in his favor. He who has the power of accepting the entire succession, cannot divide and only accept a part. The eifect of the acceptance goes back to the day of the opening of the succession. The simple acceptance may be either express or tacit. It is express, when the heir assumes the quality of heir in an unqualified manner, in some authentic or private instrument, or in some judicial proceeding. It is tacit, when some act is done by the heir, M'hich necessarily supposes his intention to accept, and which he would have no right to do, but in his quality of heir. By the word instrument used in the preceding paragraph is understood any writing made with the intention of obliging himself or contracting as heir, and not a simple letter or note in which the person who is called to the succession may have styled himself the heir. Still less is a verbal declaration binding on him. It is necessary that the intention should be united to the fact, or rather manifested by the fact, in order that the acceptance be inferred. The person who is called to the succession, if he dispose of a thing which he does not know to belong to the succession, does not thereby do an act that will make him liable as heir, be- cause such an act does not include the will to accept. On the other hand, there are some acts which though in reality they are foreign to the suc- cession, nevertheless evidently manifest the will to accept ; as, for example, if the person who is called to the succession possess himself or dispose of effects found in the succession, think- ing that they belong to it, he does an act which makes him liable as heir, because his belief that the effects appertained to the succession is suflScient to establish his will to accept. There are some facts, which necessarily suppose the will of being heir, and others which may be difierently interpreted, according to circumstances. All those acts of ownership, which the person called to the succession can only do in quality of heir^ suppose necessarily his acceptance, for to act as owner is to make himself heir. There is an exception to this rule in those cases in which the acts done are necessary for the preservation of the thing, as is hereafter explained. The person called to the succession does not commit an act of heir by disposing of property belonging to the succession by another title than that of heir ; as if he should be testamentary executor and heir at the same time, provided that in disposing of the property he does not assume the quality of heir. With regard to these acts, which may be difierently interpreted, according to circumstances, it is necessary to distinguish acts of ownership from acts of administration or ownership or preservation, or preparatory acts, which tend only to ascertain the value of the succession. The time when these acts are done must also be taken into consideration. Thus, acts which are merely conservatory, and the object of which is temporary, such as superintendence and administration, do not amount to an acceptance of the inheritance, unless the title and quality of heir should be therein assumed. HEIRS. 385 The person called to the succession, who does certain acts either from necessity or for the benefit of the succession only, may show what was his real intent by reservations or protesta- tions made before a notary, or inserted in his petition, if there be a judicial proceeding. Though it may be necessary to sell some of the eifects of a succession to prevent loss or waste, the sale of the least article of property belonging to the succession will render the per- son called to the succession irrevocably the heir, unless he cause himself to be authorized by the judge to make this sale at public auction, on a petition in which he shall allege the neces- sity there is for making it, and shall protest that he does not mean by this act to do an act that would rnake him liable as heir. The person called to the succession does an act which makes him liable as heir if, when cited before a court of justice as heir for a debt of the deceased, he sufiers judgment to be given against him in that capacity, without claiming the benefit of inventory or renouncing the succession. An act of piety or humanity towards one's relations is not considered an acceptance ; it is not, therefore, an acceptance to take care of the burial of the deceased or to pay the funeral expenses, even without protestation. The donation, sale, or assignment which one of the co-heirs makes of his right of inheri- tance, either to a stranger or to his co-heirs, is considered to be on his part an acceptance of the inheritance. The same may be said, first, of the renunciation, even if gratuitous, which is made by one of the heirs in favor of one or more of his co-heirs; and second, of the renunciation which he makes in favor of all his co-heirs indistinctly vA'hen he receives the price of this renunciation. Those who are not capable of contracting obligations — such as persons interdicted — can- not accept an inheritance ; but the curators of such persons can accept successions falling to tliose who are under their curatorship by pursuing the formalities prescribed by law. The acceptance of a succession by a married woman, without the authorization of her hus- band or of the judge, is not valid. If the wife should refuse to accept an inheritance, her husband, who has an interest to have it accepted in order to increase the revenues of which he has the enjoyment during the matri- mony, may at his risk accept it on the refusal of his wife. Not only the person who is entitled to an inheritance may accept it, but if he dies before having expressly or tacitly accepted or rejected it, his heir shall have a right to accept it under him. When several heirs in the same degree are called to a succession, some may accept uncondi- tionally, others under the benefit of an inventory ; for the unconditional heir does not exclude the heir under the benefit of inventory. The heir who is of age cannot dispute the validity of his acceptance, whether it be expressed or tacit, unless such acceptance has been the consequence of fraud practised, or violence exer- cised against him ; he never can urge such claim under pretext of lesion. Nevertheless, if the heir who has expressly or tacitly accepted the succession has not put himself into possession before he has caused a true and faithful inventory to be made in con- formity to that which is prescribed to the beneficiary heir, he can discharge himself from paying the debts of the succession out of his own property by abandoning the eftects of the succession to the creditors and legatees of the deceased, and rendering them a faithful account of the same, as well as of the fruits and revenues received by him. But in order to enjoy this advantage, the heir who has accepted must not have disposed of any of the property, movable or immovable, of the succession, except in the forms prescribed in the case of the benefit of inventory. He must not have been decreed by a definitive judgment to be the unconditional heir, nor have accepted at the suit of the creditors instituted to oblige him to assume this quality. The heir who has accepted the succession simply may even be compelled to make an inven- tory of the succession, and to give security in the same manner as in the case of the benefit of an inventory, if a majority in amount of the creditors of the succession, either present or repre- sented in the parish where the succession is opened, require it. In default of such security, there shall be appointed an administrator to administer the succession, according to the pro- visions of the section relative to the benefit of inventory. In obtaining possession of the effects of a succession, the heirs shall not be permitted, under any pretence whatsoever, to have an actual delivery of any property of such succession which may be in suit or to receive any money of such succession when there shall be claims thereon pending in court, unless they previously give bond with good and sufficient security, 25 386 INTESTATE SUCCESSION. if the plaintiffs in sncTi suits require it ; which security shall be one fourth over and above the amount of the claims for money thus claimed, or of the appraised value of the property in suit ; which estimation shall be made by two appraisers appointed by the judge : La. 976-lOJl. The effect of the simple acceptance of the succession, whether expressed or tacit, is such that when made by an heir of age, it binds him to the payment of all debts of the succession, not only out of the effects which have fallen to him from the succession, but even personally, and out of his own property, as if he had himself contracted the debts, or as if he was the deceased himself, unless before acting as heir he make a true and faithful inventory of the effects of the succession as here above established, or has taken the benefit treated of hereafter : N.M. 1444 ; La. 1012. The engagement of the heir who has accepted unconditionally is somewhat different with respect to legacies, as shall be hereafter explained : La. 1013. § 3023. Of the Renunciation of Successions. He who is called to the succession being seized thereof in right, is considered the heir as long as he does not manifest the will to devest himself of that right by renouncing the succession. A succession can be renounced only under the same circumstances in which it can be legally accepted, according to the rules established in the preceding section. A succession can neither be accepted nor rejected conditionally. The renunciation of a succession is not presumed ; it must be made expressly by public act before a notary, in presence of two witnesses. He to whose share an inheritance falls may refuse it, provided he be capable of alienating; for the renunciation of an inheritance is in all respects assimilated to an alienation. Thus a person interdicted cannot make a valid refusal of an inheritance without the authori- zation of the judge and of his curator. A woman under the power of her husband cannot renounce the inheritance falling to her share, unless she is duly authorized to that effect by her husband, or, on the refusal of her hus- band, by the judge. He who is called to an inheritance may accept or renounce the succession by himself or by an attorney in fact, provided the attorney be specially appointed to that effect. The creditors of the heir who refuses to accept or who renounces an inheritance to the prejudice of their rights can be authorized by the judge to accept it in the name of their debtor and in his stead, according to the forms prescribed on this subject in the following paragraphs. In case of this acceptance, if there be a renunciation on the part of the debtor, the renuncia- tion is annulled only in favor of the creditors for as much as their claims amount to, but it remains valid against the heir who has renounced. If, therefore, after the payment of the creditors, any balance remain, it belongs to his co- heirs who may have accepted it; or if the heir who has renounced be the only one of his degree, it goes to the heirs who coTne after him. If, on the contrary, the heir has only refused to accept, and has not renounced, he can claim the surplus, on accepting the succession, provided his right of acceptance be not prescribed against : La. 1014-102L § 3024. Of the Benefit of Inventory and the Delays for Deliberating. The benefit of inventory is the privilege which the heir obtains of being liable for the charges and debts of the succession only to the value of the effects of the succession, by causing an inventory of these effects to be made within the time and in the manner hereinafter prescribed : N.M. 1443-4; La. 1054. By term for deliberating is understood the time given to the beneficiary heir to examine if it be for his interest to accept or reject the succession which has fallen to him. The heir who wishes to enjoy the benefit of inventory and the term for deliberating is bound, as soon as he knows of the death of the deceased to whose succession he is called, and before committing any act of heirship, to cause the seals to be affixed on the effects of the succession by the pro])er officer. In ten days after this affixing of the seals, the heir is bound to present a petition to the judge of the place in which the succession is opened praying for the removal of the seals, and that a true and faithful inventory of the effects of the succession be made as is hereinafter prescribed. IIETRS. 387 In all cases in which a succession is opened, and the presumptive heirs who are present or represented do not take the necessary measures to cause the seals to be affixed to and an inven- tory made of the effects of the succession, any creditor of the deceased has the right, ten days after the opening of the succession, to cite the heirs before the judge of the place in which it is opened, in order to oblige them to declare whether they accept or renounce the succession. If the heirs thus cited declare that they accept the succession, or if they are silent or make default, they shall be considered as having accepted the succession as unconditional heirs, and may be sued as such. If, on the <',ontrary, the heirs thus cited declare that they wish to take the benefit of inven- tory, and have the delay for deliberating, the judge shall grant them the delay, and order all proceedings against them, personally or as heirs, to be suspended until the term has expired : La. 1032-1038. The term given to the beneficiary heir to deliberate whether he will accept or reject the succession shall be thirty days from the day on which the inventory is finished. If there have been inventories made in diSerent parishes, the term commences from the day the last of them is finished : La. 1050. At the expiration of the term for deliberating, the creditors and legatees of the succession can compel the heir to decide whether he accepts or rejects the succession ; and they shall present a petition to this effect to the judge of the place where the succession is opened, who shall cause the beneficiary heir to be cited to answer thereto. If, on this demand, the beneficiary heir declares that he accepts the succession simply, all the effects which compose it must immediately be delivered to him ; but then he becomes re- sponsible for the debts of the succession not only to the amount of the effects thereof, but per- sonally and out of his own property, and the creditors of tbe deceased can obtam judgment against him. In case the heir makes default on this demand, he shall be considered ^.n unconditional heir and be bound as such. But if the heir declares that he is not willing to accept the succession otherwise than under the benefit of an inventory, the person appointed administrator of the estate, whether it was the heir himself or any other individual, shall proceed to the sale of the property of the succes- sion, and to the settlement of its aftaira, as prescribed in the Probate Code, Part IV., Division I. The beneficiary heir shall, at the time of such settlement, have a right to be paid, as any other creditor, all debts due him by the deceased, and shall, moreover, be entitled to the balance of the proceeds of the sale of the estate, if any such balance be left after payment of all the debts and charges of the succession. If, on the contrary, the beneficiary heir renounces in due form, he preserves all the rights he has against the succession, if he is a creditor; and in case he has been originally appointed ad- ministrator of the succession, he shall continue to manage it in this capacity, even if he is not a creditor of the deceased. If, on the renunciation of the beneficiary heir, the heirs called to the succession on his default accept the succession, they shall be admitted thereto, and they shall have the right to enjoy that part of the term for deliberating which has not expired, should the heir renounce before its expiration. But if the term has expii'ed, the heirs cannot obtain a prolongation of it, but must imme- diately decide whether they accept or reject the succession, as is provided for above. If the heir secrete anything belonging to the succession, or has knowingly and in bad faith failed to include in the inventory any of the effects of the succession, he is deprived of the benefit of inventory. As soon as the beneficiary heir has renounced in due form, if no heirs present themselves to accept the succession on his default, or if they themselves renounce, the administrator shall cause the immovables and other effects of the succession remaining undisposed of to be sold on the authorization of the judge, and after advertisement during the time and in the manner pre- scribed by law : La. 1055-1062. A testamentary inventory is the instrument containing a list of the property belong- ing to the estate of the deceased, legally and duly made. It must be made (1) liy the heir ad bona or administrator of the estate, notifying the panics interested in the distribution ; (2) by the guardian and curator ; (3) by the probate judge, in case the person die intestate, and the urgency of the case requires it, until an administrator be appointed : N.M. 1439,1441. 388 INTESTATE SUCCESSION". § 3025. Constitution of Heirs. In a few states, any person desiring to make a person his heir-at-law may do so (A) by declaration in writing in favor of such person, acknowledged (1) before any judge, jiistice of the peace, clerk of court, or court of record : Ark. 2544 ; (2) before the judge of probate : 0. 4182. (B) By petition and order of the Superior Court : Wis. 3521. Such declaration, in order to have any effect, must be recorded (1) in the county where tha declarant resides : 0. ; Ark. 2545 ; or (2) in the county where the heir resides : Ark. " A person having no direct heir, although he may have legal heirs, may constitute a stran- ger his heir, on condition that he be not an infamous or stupid person ; but even in this latter case, married persons may mutually constitute each other heirs: " N.M. 1386. " The testator may appoint either heir as substitute ; so that in case of the absence of tho first the substitute may take possession of the inheritance : " N.M. 1433. § 3026. Of Unworthiness of Heirs. There is this difference between being unworthy and incapable of inheriting that he who is declared incapable of inheriting has never been heir, whilst he who is declared unworthy is not the less heir on that account, if he has the other quaUties required by law to inherit. Thus a person unworthy of inheriting remains seized of the succession uutil he is deprived of it by a judgment which declares him devested of it for cause of unworthiness. Persons unworthy of inheriting, and, as such, deprived of the successions to which they are called, are the following : — 1. Those who are convicted of having killed, or attempted to kill, the deceased ; and in this respect they will not be the less unworthy, though they may have been pardoned after their conviction. 2. Those who have brought against the deceased some accusation found calumnious which tended to subject the deceased to an infamous or capital punishment. 3. Those who, being apprised of the murder of the deceased, have not taken measures to bring the murderer to justice. The unworthiness is never incurred by the act itself; it must be pronounced by the court in a suit instituted against the heir accused of unworthiness after he has been duly cited. Not denouncmg the murder of the deceased shall not be opposed as a cause of unworthiness in the heir, if such heir is the husband or wife of the murderer, or his relation in the ascending, descending, or collateral line down to the third degree inclusively. If the heir be declared unworthy of inheriting by a definitive judgment, he shall be con- demned to deliver to the relations succeeding on his (.efault, or those who have succeeded jointly with him, not only the effects of the succession of which he has had the use since its opening, but all the fruits, revenues, and interest he nas derived from such effects since the opening of the succession : La. 965-969. The sales by an heir are valid, if marie without fraud in the purchasers, though they may have been made since the institution of the suit to determine the unworthmess of the heir, if the purchasers had not and could not have been informed of its being instituted. But in all cases the heir, thus devested of the succession, shall be condemned to restore the price of these sales, with interest from the day of the demand ; and the relations who succeed on his default, after his destitution is pi-onounced, shall alone have the right to exact and receive the sums remaining due on the price of these sales from the purchasers. Mortgages stipulated without fraud by the heir, who is afterwards devested for cause of un worthiness, also remain in force in favor of the parties with whom they have been contracted, reserving to the person succeeding to the inheritance his recourse against the unworthy heir. The destitution pronounced against the heir revives in his favor all the rights and actions which he had against the succession, and which had been for a time extinguished by confusion. So, in case he had paid any creditors of the succession, he shall be reimbursed, and those who have not been paid have no right of action against him. The rights and actions of the succession against the heir who is devested for cause of unworthiness are also revived. The children of the person declared unworthy to succeed, being admitted to the siiccession ab intestato in their own name and without the aid of representation, are not excluded by tho fault of their father ; but the father cannot claim, in any case, upon the property of that succes- sion the usufruct which the law grants him in certain cases. The exclusion, either for cause of incapacity or unworthiness, shall not be sued for by others than the relations who are called to tlie succession in default of tho unworthy heir, or in con- COURSE OF DESCENT. 389 currence with him ; and this kind of suit shall be determined in the same manner as other civil actions. Suits to establish the unworthiness of heirs cannot be sustained if there has been a reconcilia- tion or pardon on the part of him to whom the iujury was done. If, therefore, a father has full knowledge of an iujury dt)ue to him by one of his children, and dies without disinheriting him, though he has sufficient time to make his will since he has had this knowledge, he will be considered as having forgiven the injury, and the child cannot be deprived of the succession of his father on account of unworthiness : La. 970-975. § 3027. Establishment of Heirs. In several states, there is a process by which, in cases of descent of real estate, the heirs-at-lavv, or any of them, may file a petition with the probate judge, setting forth the death and last residence of the intestate, the niimber of heirs, their names, ages, and residences, their relation to the deceased, and as nearly as possible describing such real estate and the respective interest of the heirs therein ; and the surrogate or judge may examine witnesses, and then may make a de- cree or indorsement on the petition, which shall be recorded in the land record office, and be presumptive evidence of the facts therein in all proceedings concerning the succession of such real estate: N.Y. Civ. C. 2654-7; N.J. 1880,195; Pa. 1883,119; Mich. 1883, C. 49 ; Wis. 3873, Amt.; Cal. 1885,160; Minn. 1885,50. Art. 310. Course of Descent. § 3100. Note. The laws of the several states relating to the course of de- scent of real property, and distribution of personal property, digested in this article, will be found by the following citations. Throughout this article these citations are to be understood as referred to, unless a special citation is made. It is worthy of note that in no two of the states and territories are these laws completely identical. See N.H. 203,1-8 and 202,2 and 9-10 and 16 ; Mass. 125,1 ; 124,1 and 3 ; Me. 75,1-2 ; 103,1 and 14 ; Vt. 2230 ; R.I. 187,1-2 and 4-6; 185,4; Ct. 1885,110; 194-5; 198-200; KY. 2,2,1-8,10-13,16,20 ; N.J. Descent, 1-6; Pa. Intestates, 1-4,6-20,22-24,28-29,31,34; O. 4158-4162,4164-8, 4176; Ind. 2467-2471,2481-2486,2489-91 ; 111.39,1; Mich. 5733,5770 ; 1883, 169 ; Wis. 2270, Amt. ; lo. 2453-8,2440 ; Minn. 46,3 ; Kan. 33,8 and 18-21 and 28-29 ; Neb. 1,23,30 ; Md. 47,2-23 ; Del. 85,1-2 ; Va. 119,1 and 9 and 11 ; W.Va. 1882,94,1; N.C. 1281; Ky. 31,1-2 and 9 ; Tenn. 3268-3272 ; Mo. 2161-2165, 2186,2195 ; Ark. 2528-2534,2522,2599,2591-2 ; Tex. 1645-7,1652 ; Cal. 6386, Amt. Vol. 3 ; Ore. 10,1 ; Nev. 794 ; Col. 1039 ; Wash. 3302 ; Dak. Civ. C. 778 ; Ida. Prob. C. 315 ; Mon. Prob. C. 534 ; Wy. 42,1 ; 1877, p. 35 ; Uta. 1884,44,2,3 ; S.C. 1845 ; Ga. 2484,1764,1761-2 ; 1883,391 ; Ala. 2252-3; Miss. 1271,1171 ; Fla. 92,1-5 ; 95,3 and 5 ; La. 902-917,888 ; N.M. 1432,1436-7 ; Ariz. 1463. The laws of New Mexico, in cases where the decedent was married, are peculiar and complicated. They will be found in § 3404. Personal Property. The laws of the states regulating the distribution of per- sonal property belonging to an intestate will be found in the following citations. Througliout this article, when no citation is made, reference is to be had, in the case of personal property, to this section : N.H. 202,7-8 and 15 ; 203,6 ; Mass. 135,3 ; 1882,141 ; 1885,276 ; Me. 75,8-9 ; Vt. 2234 ; E.I. 187,9; 184,7 ; Ct. 1885,110,198-200 ; N.Y. 2,6,3,75 and 79 ; N.J. Orph. Ct. 147-8 ; Ta. Litestates, 1-5,24,28-29,31,15,21 ; 0. 4163,6194 ; Ind. 2487-2490; 111. 39,1 ; Mich. 5847 ; Wis. 3935 ; lo. 2436 ; Minn. 51,1 ; Kan. 33,31 ; Neb. 1,23,176 ; Md. 48,1-19 ; 50,92; 1882,477; Del. 89,32; Va. 119,10 ; W.Va. 1882,94,9-10 ; N.C. 1478 ; 390 INTESTATE SUCCESSION. Ky. 31,11 ; Tenn. 3278 ; Mo. 2189-2192,2101 ; Ark. 2522,2591-2,2599 ; Tex. 1645-6 ; Cal. 6386 ; Ore. 10.2 ; Nev. 794 ; Col. 1039 ; Wash. 3316 ; Dak. Civ. C. 778 ; Ida. Prob. C. 315 ; Mou. Prob. C. 534 ; Wy. 42,1 ; Uta. 1884,44,2,3 ; S.C. 1845; Ga. 2570; Ala. 2261,2714; Miss. 1273; Fla. 92,12-13; 95,2 ; La. 902- 917 ; N.M. 1436-7 ; Ariz. 1463. Throughout this article, the sign * means that there is a distinction made in the cases and in the states noted between the whole and the half blood, and that the pro- vision in question applies to relatives of the whole blood only. And see § 3133. The sign t means that there is a distinction between descent and purchase, by which, if the estate in question was derived by the intestate by descent, devise, or gift of an ancestor or any kinsman, all not of the blood of such kinsman are excluded ; see § 3134. The si«'n ** is used to denote cases where this latter rule modifies the former, by enabling the half blood of the blood of such ancestor to share with the whole blood. See § 3133, E. In cases not noted at all, there is no distinction between the whole and the half blood ; and so also by exception (usually in the case of personal property) in cases marked with this II sign. Provisions thus § marked apply to pei-sonal property only ; so H marked, only to realty. The sign J is to refer the reader to §§ 3107-8, there being special provisions as to property not acquired by purchase. For the general principles bearing on the above, see Art. 313. § 3101. Children Living, Wife or Husband Dead, (a) Id all the States, with- out exception, the real estate descends to the legitimate children of tlie decedent living at his death and the issue of deceased children "per stirpes, in equal shares. (b) But in many states, if any such child die under age and unmarried or with- out issue, all the estate descending by gift, devise, or descent from either parent to such child goes (1) to the other children of the same parent and the issue of such as are dead, per stirpes ; but if all such other children are dead, to the grandchildren or other issue, per stirpes ; or, if all are in the same degree to such deceased child, per capita (this last clause is not enacted in New Hampshire) : N.H., Me., Mich., Wis., Minn., Neb., Cal., Ore., Nev., Wash., Dak., Ida., Mon., Uta.. Ariz. (2) To the parent or to the kindreil of such parent ; if none such, to the kindred of the other parent, according to the general rules of descent: Ct., Va.,1[ Ky.,^ Fla., La. See $ 3107. But the kindred of one are not so excluded by kindred of the other if the latter is more remote than grandparents, uncles and aunts, and their descendants : Ky. (3) As if such child had died in the lifetime of such parent : Ct. Otherwise, the personal estate of au infant is distributed as if he had died after full age : Ky. 31,11. § 3102. Same Case : Personalty, (a) In most states, the personal property is distributed precisely as the real estate descends, (1) in all cases : Vt., lo., Minn., Kan., Cal., Nev., Col., Dak., Ida., Mon., Wy., Uta., S.C, Ga., Miss., La., N.M., Ariz. (2) Except as to the widow's or husband's share : N.H., Mass., Me,, E.I., Ct, Pa., O., Ind., 111., Mich, Wis., Neb., Va., W.Va., Ky., Mo., Ark., Tex., Ore., Wash., Ala., Fla. (3) And for other states, see Doiver, Art. .320, and Curtesy, Art. 330. (4) And except as to the half-blood rule (in several states), there being no distinction made in cases of personalty : N.Y. See also $ -31.33. (o) And in personalty, there is no distinction made whether the property was acquired by the intestate or descended to him from any relative : R.I., O. See also §§ 3107,3134. So, there is no distinction made, as in $ 3101 : Va., Ky. And see $ 6015. (b) In otlier states, there being no widow or husband, the personal property of an intestate, after debts and charges, etc., paid, is distributed to the children COURSE OF DESCENT. 391 and their descendants, as iu §§ 3101,3103, j^er stirpes:'^ N.Y., N.J., Md., Del., N.C., Teun. But descendants of the same degree take personalty, in all cases, in equal shares per capita : Md. 48,1. For other states, see ^ 3103. If any child thus inheriting from the father dies intestate during the life of the mother with- out wife or children, his share goes to his mother, brothers, and sisters, in equal shares : N.C Note. — " So, in all other states, under the provisions of A. § 3103. Children Dead," Grandchildren Living, "Wife or Husband Dead. When all the children are dead, the grandchildren and the issue of deceased grand- children take, in all the states, (A) per stirpes, in all cases, to the remotest degree, in the same manner (§ 3101) : KH., Vt., E.I., Ct., N.J., 111., To., Minn., Kan., Md.,1[ Del., N.C, Ky., Teun., Ark, Cal., Col., Wy., S.C, Ga., Ala.. Miss. (B) But when all such issue or grandchildren are in the same degree, they take in equal parts per capita ; otherwise, per stirpes, as in A : Mass., Me., N.Y., Pa., 0., Ind.,* Mich., Wis., Neb., Va., W.Va., Mo., Tex.,'^ Ore., Nev., Wash., Dak., Ida., Mon., Uta., Fla., La., N.M., Ariz. See § 3138. (C) But in one state, when there was hut one child, and he or she is dead, leaving issue several children, these grandchildren take real estate according to the common law ; i. e., the entire estate goes to the eldest grandson, or, if no grandson, to the granddaughters in copar- cenary. See N.J. 4 GriflF. Reg. 1250. Notes. — « See § 3000. * Applies to grandchildren only, not to great-grandchildren. " The law is, however, ambiguous in wording. § 3104. Same Case : Personal Property. It descends (except in Maryland) like the realty in § 3103. See §§ 3102-3. § 3105. Children and "Wife or Husband Living." (A) In many states, the wife takes (1) one third of the real estate remaining, after debts and charges are paid, in fee : N.H.,* Ct.,^-'^'^ Cal.,'^"^ Nev.,^--'' Wash.,^'-'' Dak.,^'^ Ida.,<^'^ Mon.,<^-^ Uta.,<^'-^ S.C.,*'= Fla.^'^ (2) In others, she takes one half of such estate in fee : Ind.,^ Cal.,'^- ^ Nev.,"^- " Col/ Wash.,^' 3 Dak.,<^' ^ Ida.,^-^ Mon.,^- MVy.,^ Uta.,^- ^ Fla.*- '^ (.3) In a few, she takes one third of such estate for life : '^ Pa., Tex.'' (4) In several, she shares equally in such estate (in fee) with the children and the issue of those deceased, per stirpes : Mo.,* Ark.,* Ga.,*'' '^ Miss.*' '^ Except when such shares exceed five in number, she always takes a fifth part : Ga.* (5) In two others, the wife takes one third of all real estate of which the hus- band was seized at any time during coverture, to which she has made no relinquish- ment, and which has not been sold under execution, free of all his debts and charges of administration, in fee :* Ind.,-^ lo.*^ Except when such real estate exceeds $10,000 in value, she is only entitled, as against creditors, to a fourth ; or if it exceed $20,000, to a fifth : Ind. (6) In one, she takes such third as in (5), but subject to the husband's debts : Miun.° (7) So, in one other, she takes one half such estate, as in (G) : Kan."^ (B) In other states, she takes her dower estate only; see Art. 320: N.H.,'" Mass., Me., Vt.,* R.I., Ct.,-' N.Y., N.J., 0., 111., Mich., Wis., Neb., Md., Del., Va., W.Va., N.C, Ky., Tenn., Mo.,* Ark.,* Ore., Ga.,* Ala. For other provisions and citations, see also § 3202. (C) The other portion of the estate, after the widow's or husband's share is assigned as above respectively, descends, in all states, as in § 3101. And so, in states where the widow takes dower or a life estate (A (3), B), tlie remainder upon such estate goes tc the children, etc., as in § 3101. Restrictions. A widow remarrying cannot alienate such estate, with or without the con- Bent of the husband, if issue are alive by the former marriage, uutU all the children reach th* 392 INTESTATE SUCCESSION. age of twenty-one, and join in the conveyance : Ind. 2484. If, during such subsequent mar- riage, the widow die, such estate reverts to the children by the former marriage : Ind. If the widow has no children by the decedent, and he left children by a former wife, such widow's share of the real estate descends on her death to them : Ind. 2487. Of the Husband. The husbaud in such case takes (A) one third the surplus real estate in fee, after paying debts and expenses : IST.H.,'' Ind. But if the issue left are not his children, and he has no estate by the curtesy, the husband takes one third the real estate of which the wife died seized for his life : N.H. (B) He shares with the children and their descendants, per stirpes: Ga., Fla. (C) He takes his estate by the curtesy, etc., only (see § 3301) : N.H., Mass., Me., Vt., R.I., Ct.,-'" N.Y., N.J., Pa., 0., 111., Mich., Wis., Neb., Md., Del, Va., W.Va., N.C., Ky., Mo., Ore., Ala. The share of the husband both in real and personal property of the wife is, in all cases, the same as that of a widow in the husband's : lo., Tex., Cal., Wash., Dak., Ida., Mon., Wy., Uta., S.C., Miss. So, in all states so*^ noted, as in this section provided. For such states, therefore, see also above in A. For New Mexico, see § 3404. So, in Louisiana and Arizona, the widow and husband take no estate, real or personal, except in the community property, as provided by Art. 340. Notes. — " For Dower, and for the Descent of Commnnity Property, see Chapter V. * This share is in lieu of dower or curtesy ; see § 3263. '^ Or the husband, if it was the wife who died intestate. <* This intestate share is not, in these states, as in others, identical witli that which she takes upon waiving a will. See § 3262. * As to marriages since April 20, 1877, only; but the same law applies to other marriages if the parties enter into a written contract of waiver of their rights as existing before that date, and such contract be recorded in the probate court : Ct. 1885,110,195. -f If tliere be more than one child, or the issue of more than one child deceased ; if there was only one child, see below. If there was only one child surviving or leaving issue. * Practically (except in amount) this is dower as at common law, and it may be barred by jointure, etc., as in Chapter V., where further rules relating to this case will be found. » But she (or he) may waive such dower, and take her intestate share ; see note ^ i As to marriages of date before April 20, 1877, see note ^. § 3106. Same Case : Personal Property, (a) Of the "Widow. (For other States, see § 3102, A.) In most states, (1) one third the surplus personal property goes to the widow (or husband, in states noted ^) ; the rest to tlie issue, as in §§ 3102,3104 : N.H. ; Mass. ; Me. ;<^ R.I. ; Ct. ; "^ N.Y. ; ' KJ. ; Pa. ; 0. ;" Ind. / 111. ; ' Mich. / Md. ; Del. ; Va. ; W.Va. ; ' N.C. ;''''''' Ky. ; Ark. ; Tex. ; ' Fla.''-^ 95,2. (2) In others, one half such property to the widow ; the rest as above : Ind.,^ Mich.,"' ' Ore., Wash.," Ala.,"' ^ Fla.*- ^ (3) In a few, the widow shares equally with the children, counting the issue of a deceased child as one (a) in all cases : Wis., Neb., Teun., Mo., Ark.,*" Miss. ; '^ (/3) when there are two children or more : N.C., Ala. Except that, if there are more than four children, the widow always takes a fifth : Ala. (4) In other states, such personalty goes like the real estate, as in § 3105 ; see $ 3102. For the widow's temporary allowance of supplies, etc., see in the Probate Code. (b) Of the Husband. (1) In many states, the husband's share of personalty is, in all cases, like the widow's : Me., N.Y., 111., Minn., Kan., Tex., Cal., Wash., Dak., Ida., Mon., Wy., Uta., S.C, Miss. (2) And in a few others, his share is like the widow's in this case : Mich. So, in the states above so " noted ; see A. (3) But in several, the husband is entitled to all the wife's separate personal prop- erty, if she die intestate, though there be children or issue living : R.I., Ct.,'^ N.J., Md., Del., Ya., Ky., N.C., Ore. (4) And in several others, he is entitled to one half such estate ; the rest, as in § 3102 : Mass., Ala. COURSE OF DESCENT. 393 (5) In a few, he shares equally with the children and the issue of those deceased, per stirpes : Pa., Fla. (6) In a few others, he takes a third ; the rest as before : 'N.}i., Ind. (7) In one, he takes all such personalty for life ; after his death, to the children, etc. : Md. 1882,477. (8) la one, it seems he has no share of the wife's personalty not reduced to pos- session : 0. 3109 ; Wis. ; Neb. ; Tenn. ; Mo. ; Ark. But qucere whether he has not all. Notes. — "• *• '• ''•■^' ^^^ See same notes § 3105. * If not more than two children. * One third all the personalty of which the husband died possessed, ' ' as part of her dower " (i. e., free of debts). « One half to the widow, if the whole does not exceed §400, and one third of the rest. § 3107. No Issue : "Wife or Husband Dead. If there are no descendants liv- ing, the estate descends (a) tu the father of the decedent, in many states : N.H., Me., Vt., E.I.,+ KY.,J<^ Minn., Neb., Va., W.Va., Ark., Ore., Nev., Col., Dak., Ida., Men., Fla., Ariz. (b) To the brothers and sisters and descendants of deceased brothers and sis- ters, per stirpes: Ct.,* J N.J.,* f " 0.*l Md.,* + '' Del.,* Tenu.,!*^ Ala.,* Miss.* (C) To the father and mother equally : Mass., Mich., Wis., lo., Kan., Ky., Tex., Cal., Wash., Uta., N.M. (D) To the parents, brothers, and sisters of the deceased and the descendants of them deceased, per stirpes'^ (but if only one parent, to him a double portion, in Illinois) : 111., Mo.,*Wy.,*S.C.*<^ (E) In Utah, it goes all to the mother : Uta. *= 1884,44,2,18. (P) In Pennsylvania, to the father and mother, or the survivor of them, for their joint lives : Pa.f (G) In a few others, one half to the father and mother as joint tenants (or, in Loui- siana, in equal several shares) ; the other half to the brothers and sisters and their descendants, as in § 3113 : Ind.,* Tex.,* * La.* (H) In one, to the next collateral relation capable of inheriting of the decedent, whether of the paternal or maternal line, with indefinite representation (§ 3137) : (I) To the father for life : Ark.+ "= (J) In Georgia, to the father (or, if the father be dead, to the mother), brothers and sisters of the whole blood, and paternal brothers and sisters of the half blood, and the children and grandchildren, per stirpes, of such brothers and sisters deceased, in equal shares : Ga.* And if there are no brothers and sisters of the wh(de or the paternal blood, the half brothers and sisters of the maternal blood inherit, with the father or mother, as before : Ga. Descent Distinction. (See also § 3134, for citations.) In nine states, how- ever, there is a special distinction (for the general distinction, see §§ 3133,3134) made between cases where the estate was acquired by the decedent himself or (1) by descent, gift, or devise from an ancestor : O., Tenn. (2) Where it came to the decedent on the part of his mother, or on the part of tlie father : N.Y.* 2,2,29 ; Ind. ; Md. ; Ark.* (3) Or, generally, whether it came by descent, devise, or gift from any kindred or ancestors or not : R.I., Ct. (4) In North Carolina, the distinction is between cases where the inheritance has been transmitted by descent, devise, gift, or settlement from an ancestor to whom tlie person thus advanced or inheriting was or would have been heir, and all other cases. Estate acquired by the decedent descends as above, in all states ; and so, in Indiana, of estates however acquired, in the case provided for by this section ; but estate acquired in the other manners respectively indicated above descends, — 394 INTESTATE SUCCESSION. (A) If the intestate was a minor, and left no issue (see § 3101), such estate goes to the next of kin of the blood of such ancestor ; if none, to the next of kin of the intes- tate generally, in many states. (B) To the decedent's husband or wife for life ; and if no husband or wife, or at his or her death, to the brothers and sisters of the intestate of the blood of such ancestor and their legal representatives in equal shares, ?;er stirpes : 0.** In Ohio, if there are no brothers and sisters of the blood of the ancestor from whom the estate came, or their legal representatives, and the estate came by deed of gift from an ancestor who is still living, it goes to such ancestor ; if the ancestor from whom the estate came be dead, it goes to the children of such ancestor or their legal represen- tatives ; if none of these, to the husband or wife, relict of such ancestor, if a parent of the deceased, during the life of such relict ; and if no such husband or wife, or upon his or her death, to the brothers and sisters of such ancestor or their legal represen- tatives ; if none such, to the brothers and sisters of the half blood of the intestate or their legal representatives, although they are not of the blood of the ancestor from whom the estate came ; if none such, to the next of kin of the intestate of the blood of the ancestor from whom the estate came or their legal representatives ; if none such, to the husband or wife of the intestate as an estate of inheritance ; if none such, to the next of kin of the intestate, though not of the blood of the ancestor from whom the estate came ; if none such, to the children of any deceased husband or husbands, wife or wives, whose marriage with the intestate was not annulled prior to his or her death, or their legal representatives ; if no such children or legal representatives living, to the brothers and sisters of any such husband or wife ; if none, to the next of kin of such intestate (but see above) ; if none, escheat. (C) If the intestate left no issue, such estate goes to the brothers and sisters and their issue of the blood of such ancestor ; if none, to the children of such ancestor and their issue ; if none, to the next of kin of such ancestor ; but if the blood of such ances- tor is extinct, then to the brothers and sisters of such person and their representatives ; if none, it descends as in ordinary cases : Ct.lf (D) In New York, if it came on the part of the father, it goes to the father in fee ; if on the part of the mother, to the mother for life, remainder to the brothers and sisters. If there is no father, in the first case, to the mother for life ; and if no mother, in the second case, to the father for life ; remainder in both cases to the brothers and sisters of the intestate of the blood of such parent and their descendants, as hereinafter provided ; if none such, to the mother or father in fee ; if neither mother nor father, to the brothers and sisters of the father, in the first case, or of the mother, in the second case, or their issue ; and in default of such, to the brothers and sisters of the mother, in the first case, or of the father, in the second case : N.Y. 2,2,5 and 10-12. And if there are no brothers and sisters of either the father or mother or their descendants, the estate descends according to the rules of the common law (i. e., to the great-grandfather's eldest male descendant in the line of the eldest sons ; or if no such male descendant, to his sisters, unless the inheritance come on the part of the mother ; but qucere) : N.Y.-^ifc. 16. (E) In Indiana, the distinction is not made until we reach the case of there being no issue, parents, brothers, or sisters (§ 3121). (F) And in Maryland, if the estate des(7ended to the intestate on the part of the father, then to the father ; if none, to the brothers and sisters of the blood of such father and their descendants,** equally; if none such, to the father's father, and if de- ceased, to his nearest descendants in equal degree equally ; if none, to the father of such grandfather, or his descendants in the same manner, and so on ; if no paternal ancestor, or descendant of such ancestor deceased, to the mother of the intestate ; if no mother, to her descendants in equal degree equally ; if none, to the maternal ancestors and their descendants, in the same manner as above, in the case of the paternal line. If the estate descended on the part of the mother, it goes to her aud her kin in the same COUilSE OF DESCENT. 395 manner as above, mutatis mutandis; and so, for default thereof, to the father and his kin. (G) To the next collateral relatives of the intestate of the blood of such ancestor ; then to the other kin : R.I., N.C. See also § 3134, for similar provisions iu many other states. (H) So, to the brothers and sisters of such blood ; if none, to the parents ; if none, to other heirs of the blood of such ancestor, and their descendants : Tenn. (I) To the father and his heirs, to the exclusion of the mother's, but in the same order as in other cases ; and so, if the estate came on the part of the mother, to her and her heirs : Ark. 2531. And in other states, the same would result from § 3134. Notes. — " But per capita if in equal degree, in the noted states ; and when division is made per capita, the grandmother, or other lineal female ancestor, takes only her share per capita. * This ex- pression includes every case where the inheritance came to the intestate by gift, devise, or descent from the parent referred to, or from any relative of the blood of such parent : N.Y. ; Ark. 2543. '^ This provision directly contradicts another section of the same act ; see above. A, C. '^ But no represen- tation is allowed beyond brothers' and sisters' children, in the noted states ; see § 3138. ^ In the noted states, if all such relatives are of equal degree to the intestate, they take per capita ; see § 3137. -^ It may well be doubted whether the common law in such case would mean the English law of primogeni- ture, or the common law of the state, by which the children, etc., inherit equally. § 3108. Same Case : Personal Property, (a) In Connecticut, the personal property, when there is no widow nor issue, is distributed as real estate descends in § 3107 respectively. So, in many other states (except, in some, as to the half blood, etc.), by § 3102, A,B. See § 3102. (B) In others, in the case here mentioned, it all goes (1) to the father : N.Y., Md., Tenn. ; (2) to the father and mother equally : Pa. ; (3) to the next of kin in equal de- gree : N.J.,* N.C. ; and those who legally represent them : N.C. (4) To the brothers and sisters and their issue by representation : Del.** § 3109. Same Case: "Wife or Husband Living, (a) In several states, there being no issue, the wife (or husband, in the noted'* states) of the intestate takes all the real estate in fee, subject to debts, etc. : 0. ; | " Wis. ; " Kan. ; " Ore. ; Col. ;« Ga.;° Miss.;" Fla.«'^95,5. But in Ohio, should such surviving husband or wife marry again, and die intestate and without issue, such estate (real or personal), or estate which came by gift or devise of the former husband or wife, descends to the children of such husband and wife or their issue ; if none, then one half to the brothers and sisters of the intestate, and one half to the brothers and sisters of the deceased wife or husband from whom it came : 0. 4162 ; 1881, p. 107. (B) In two others, three fourths to the widow or husband ; the remainder to the father and mother jointly : Ind.," Wy." (C) In many states, one half such real estate to the widow or husband, the other half as in § 3107 respectively : N.H.,"- ' Alass., Vt.,"- " Ct.,"-* Pa.,'' 111.," lo.," Mo.,''''^ Ark., Tex.," Cal.," Xev.," Wash, Dak., Ida., Mon., Uta., S.C." Except that all the estate, real or personal, if not over $2,000 in value, goes to the widow in fee: Vt. "-" So, in one other, $1,000 : lud." So, all up to $5,000: Mass. So, iu Wy- oming, all up to $10,000 in value : Wy." (D) In a few, she takes one half the real estate of which the husband died seized in " dower" {i e., for life) : Me.,"' * Del., Ark. See Art. 320. (e) In a few others, all such real estate to the widow for life ; remainder to the father, etc. : Mich., Neb., Ariz. (P) In Rhode Island, the court may make such an allowance of real estate as is suitable, not needed for debts, etc, to the widow iu addition to dower (com- pare Part IV., Division I.) : Pt.I. 396 INTESTATE SUCCESSION. (G) But in otliere, she merely takes her dower or other estate, as in § 3105 : Mass.,'^ Vt./ Ct./ N.Y., N.J., Minn., Md., Va., W.Va, N.C, Ky., Tenn., Ala. (H) She takes all the real estate which came to the husband in right of the marriage : Mo. The Husband's Share in Intestate Realty. (A) If the wife die intestate without issue, the husband, when entitled to curtesy, has in addition her real estate in fee to the v:due of $5,000 : Mass. (B) In many states, he has curtesy, etc., only, as in § 3105 : N.H., R.I., Ct.,-'' N.Y., KJ., Pa.,^ Mich., Neb., Md., Va., W.Va., Ore. So, in other states, when the laws are silent as to this case. (C) But in a few states, he has, in lieu of curtesy, (1) all the wife's estate to the value of $2,000, and half the excess, in fee : Vt. ; '^ (2) half the real estate of which she died seized, subject to debts : N.H.*^ If not entitled to curtesy, he has half her i*eal estate for life : Mass. ; Del. V. 14, C. 550,5. The remainder, after such widow's or husband's share, goes, as a rule, as if there were no widow or husband (§ 3107) ; but not so, in Indiana and Wyoming. See above. Notes. — "Or the husband takes the same, if it is the wife who has deceased. ^ If the estate is solvent, only. '^ In lieu of dowei- or curtesy, as in § 3105, note *. '^ See also § 3110. "'f'^ See § 3105 ; same notes. 9 He has such curtesy although no issue was born ; see § 3201. * In lieu of the intestate share above provided. § 3110. Same Case : Personalty. If there are no issue, (a) all surplus per- sonalty goes, in most states, to the M'idow (or husband, in states so " noted) : * 111.," Neb., W.Va.,"' * Tenn., Tex.,« Ore.," Wash.,'^ Miss., Fla.^ (b) In other states, it goes like realty in the same case, respectively (§ 3109) : lud.," Wy.,« N.M. So, in other states, by § 3102, A. (C) In many, the widow takes half the personalty : KH.," Me.," E.I., Ct.," KY.," KJ., Pa., Md., Del., Va.,* N.C, Ky., Mo.,"' ' Ark., Ala. Wlien a husband shall die leaving issue, but not by his last marriage, the widow may, in lieu of dower, take her real estate and personal property that came to him in her right by the marriage or by her consent in writing, subject to the husband's debts : Mo, 2191 . But in two others, all the personal property acquired by the husband by reason of his marriage with the widow, and remaining in kind at death, goes to her, not subject to his debts : Va., Mo. See also Art. 340. (D) In Massachusetts, all to tlie widow up to $5,000, and half the excess above $10,000. (E) In Michigan, all to the widow up to $1,000, and half the excess. Husband. (F) In several states, the husband takes all the surplus : Mass. ; E.I. ; N.J. ; Pa. Marriage, 16 ; Md. 1882,477 ; Va. ; W.Va. ; Ky. In the states noted ", he has a share like the widow's, as above. In Michigan, he takes half the surplus. For other states, see § 3106. The remainder after such widow's or husband's share goes (1) as if there were no widow or husband (see §§ 3102,3108) : N.H., Mass., Me., Vt., R.I., Ct., N.Y., N.J., Pa., lo., Md., N.C. ; (2) it goes to the father, or, if he be dead, to the mother, brothers, and sisters, and their issue, if deceased, in equal shares : Mich. Notes. — ° See § 3109, note ". * Eitlier by the surviving widow or a previous wife, in the noted states. If he left issue by another wife, the widow takes, in Virginia, as in § 3106. "^ In lieu of dower ; see § 3105, note ^. § 3111. No Issue, no Widow or Husband, Father or Mother Dead. In the states enumerated in § 3107, C, F, G, (A) if such mother he dead, all the estate so given to the father and mother goes (1) to the father: Mass., Pa., Ind., Mich., Wis., lo., Kan., Ky., Cal., Wash., Uta., N.M. ; (2) in the states under § 3107, C, G, A, the brothers and sisters and descendants take the share of the father or mother if either be dead : Tex.* ; COURSE OF DESCENT. 397 and if no brothers and sisters, etc., the whole to the father : Tex.* ; (3) one fourth to the father, remainder to the brothers and sisters, etc. : La.* 911. (B) And in states mentioned under § 3107, A, C, F, G, and I, if the father be dead, (1) his share goes to the mother: Mass., Pa., Ind., Wis., lo., Kan., Ark.," Cal., Col., Wash., Uta., N.M. ; but in others, (2) in such case it goes in equal shares to the mother, brothers and sisters, and children of those deceased, per stirpes : N.H., Me., Vt., E.I.,t Neb.,* Va.,* W.Va.,* Tex.* (see § 3137), Ore., Nev.,* Dak.,* Ida.,* Mon.,* Fla.,* Ariz.** And if there are no such brothers and sisters, all goes to the mother to the exclusion of their issue, if any : Me., Mich., Minn., Neb., Cal., Ore., Nev., Dak., Ida., Mon., Ariz.f ; (3) and in others, half goes to the mother, half to the brothers, etc., as in (2) : Mich.,* Ky.* ; (4) to the mother for life, and tlien to such brothers and sisters and descendants of deceased brothers and sisters (see § 3138) as may be living at the mother's death, in equal shares, ^er stirpes: N.Y.,J Ark.|; (5) one third to the mother, remainder to the brothers and sisters and their issue in equal shares : Minn.* 1885,118; (G) one fourth to the mother, remainder to the brothers and sisters, etc. : La. (See under A, 3.) For Georgia see § 3107, J. (7) The partition of the half, the three fourths, or the whole of a succession falling to broth- ers and sisters, as mentioned in §$ 3107,3111-3114, is made in equal portions, if they are all of the same raan'iage ; if they are of different marriages, the succession is equally divided be- tween the paternal and maternal lines of the deceased ; the german brothers and sisters take a part in the two lines, the paternal and maternal brothers and sisters each in their respective lines only ; if there are brothers and sisters on one side only, they inherit the whole succession to the exclusion of all other relations of the other line. In all these cases, the brothers and sisters of the deceased, or their descendants, inherit in their own right or by representation, as is regulated in the section which treats of representa- tion : La. 913. Note. — " "Whether for life or in fee is not clear ; see below (4) and § 3107, note ^. § 3112. Same Case : Personal Property. The wife or husband and father being dead, and there being no issue, (A) it goes in equal shares to the mother, brothers and sisters, and their descendants, if deceased, per stirpes : Md.,|| Tenn. So, in many other states, iinder the provisions of § 3102, A. (B) To the mother : Pa. ; (C) as in § 3111, respectively : Mich. If the mother be dead, it goes to the father : Pa. ; (D) to the mother, brothers and sisters, and their issue, by right of representation, in equal shares : N.J.* § 3113. No Issue, Widow or Husband, nor Father and Mother. (For other states, see §§ 3107,3111; there is no special provision for this case.) (a) In such case, real estate descends, in most states, to the brothers and sisters and the issue of brothers and sisters deceased, per stirpes : Mass., Vt., N.Y.,:|: Pa.,** ^'-^ Ind.,*^: 111., Wis.,* Minn.,* Neb.,* Ky.,* Ark.,*+ Cal.,* Col.,* Wash., Dak.,* Ida.,* Mon.,* Uta.,* S.C.,* " Ga.,* La., Ariz.f And if all such collaterals are in the same degree, they take per cajnta, in equal shares : Mass., N.Y., Pa.**-^ (B) In New Mexico," the paternal and maternal grandparents inherit. If no grand- parents, " the carnal brothers and their children, per stirpes ; in the absence of the foregoing, the children of the brothers of the mother alone and their children shall become heirs as the nearest branch." (C) It descends as if the parents had outhved the intestate and died each in the possession or ownership of his or her portion ; and so on through ascending ancestors and their issues : lo., Kan. NoTRS. — « But if there are no brothers and sisters of the whole blood or their legal representatives, to the brothers and sisters of the half blood and their legal representatives : Md. ^ Under the pro- 398 INTESTATE SUCCESSION. visions of § 3107. " See § 3107, note ". ^ Representation is not, however, allowed beyond brothers' and sisters' children ; or « grandchildren. See § 3137. ■^" But in spite of note <*, if there are no nephews and nieces, the other issue of brothers and sistei-s, nearest of kin, take in preference to other kindred. If " Provided, that if consanguineous brothers and their children appear in conjunction with those of the mother alone, the first shall inherit the property of the father, while the latter inherit that of the mother ; the remaining property to be divided between them with due equality : " N. M. * If there are no biothers and sisters of the whole blood, their issue share per stirpes, equally with brothers and § 3114. Same Case : Personalty. (A) To the brothers and sisters and the issue of such as are deceased, per stwpes, as in § 3113 : Pa.,|| Tenn." (B) So, in many other states, under § 3102, A. (C) To the next of kin in equal degree and their legal representatives : N.Y.|| Note. — » See § 3113, note <^. § 3115. No Issue nor Father or Mother. In such case, half the real estate goes to the husband or wife; the other half as if no husband or wife (§ 3113) : Uta., S.C. In Louisiana and other states, it descends as in § 3113 respectively. In others, the widow's or husband's share as in § 3109 ; remainder as in § 3113, there being no special provision for this case. In Indiana, all to the widow or husband. § 3116. Same Case : Personalty, (a) In several states, all goes to the widow or husband : Ind. In New York, if there be no father nor mother, the widow has half the personal estate, as in $ .3110, and all the remaining half up to $2,000; the excess of such remaining half above $2,000 goes to the brothers and sisters and their representatives : N.Y. But if there be only no father, the excess of the remaining half above $2,000 goes in equal shares to the mother, brothers and sisters, and representatives of deceased brothers and sisters : N.Y. In others, it goes as in § 3110, respectively. So, in others, as to the widow's or husband's share ; remainder as in § 3114, there being no special provision for this case. So, in others, as in § 3115, respectively ; see § 3102, A. § 3117. No Issue, Husband, or 'Wido-w, nor Brother and Sister ° or their Issue. All realty goes (A) to the father, as in § 3107, A : N.J.,° 0.,* Md.," Del,* N.C., S.C.,» Ga., Ala. And if no father, (1) to the mother for life ; remainder as in § 3121 : N.J. ; (2) to the mother in fee : 0.,^ Md.,*- Del.,'' N.C., Ala. (B) To the father and mother in equal shares : Ct.,J Tenn., Miss., La. (C) To the father and mother and the survivor of them in fee : Pa., Ind., Miss. If no father, to the mother, as iu § 3111 : S.C.,° Ga., Ala. But real estate derived from the side of the mother descends as if the father were dead : N.J. (D) To the brothers and sisters of the half blood and their issue (see also $ 3134) : 0., Md., Del. KoTES. — ° I. e., of the whole blood, in Connecticut, New Jersey, Ohio, Maryland, Delaware, South Carolina. * When there are no brothers and sisters of the half blood ; see below. § 3118. Same Case : Personalty. (A) To the father ; if he be dead, to the mother : N.Y., Md., Tenn. (B) As in § 3117: Del § 3119. No Issue, Father and Mother, nor Brother and Sister, or their Issue. (a) In such case all realty descends to the husband or wife surviving, in fee : Mo., Tex., Cal., Nev., Wa.sh., Dak., Ida., Mon., Uta. (b) Half to the widow or husband, half to the next of kin, as in § 3121 : S.C. (C) All to the next of kin, as in § 3121 : La. So, in many states, where there is no special provision. COURSE OF DESCENT. 399 (D) If there be a mother, but no father, descendant, brother, sister, or their issue, half goes to the mother, half to the widow : N.Y. (E) " The nearest relations inherit, without any preference being given to those having a double tie of iclationslup, to the eighth degree of civil computation: " N.M. (F) To the ascendants, excluding all collaterals : La. 905. If there are ascendants in the paternal and niaternal lines in the same degree, the estate is divided into two equal shares, t)ne of which goes to the ascendants on the paternal, and the other to the ascendants on the maternal side, whether the number of ascendants on each side be equal or not. In this case the ascendants in each line inherit by heads. But if there is in the nearest degree but one ascendant in the two lines, such ascendant ex- cludes all other ascendants of a more remote degree, and alone takes the succession. Ascendants, to the exclusion of all others, inherit the immovables given by them to their children or their descendants of a more remote degree who die vi^ithout posterity, when these objects are found in the succession. If these objects have been alienated, and the price is yet due in whole or in part, the ascend- ants have the right to receive the price. They also succeed to the right of reversion on the happening of any event which the child or descendant may have inserted, as a condition in his favor, in disposing of those objects : La. 906-8. § 3120. Same Case : Personalty. (A) All personalty goes to the widow or hus- band surviving : Mich., Md., Mo., Tex. (B) If there be no parent, descendant, brother or sister, nephew or niece, all the personalty goes to the widow or husband, to the exclusion of grand-nephews, etc. : N.Y. (C) For Indiana, see $ 3116. (D) In one, if tliere are no descendants, father, mother, brother, or sister of the whole blood or their children, or brother or sister of the half blood, one half to the widow or husband, the other to the lineal ancestor; if no such ancestor, two thirds to the widow, one third to the next of kin : S.C. § 3121. No Issue, Father or Mother, Brother and Sister, or their Issue, nor Husband or Wife, (a) The estate goes to the next of kin, according to the civil law, in equal degree, except that when there are two or more in the same degree, those claiming through the nearest ancestor are to be preferred: Mass., Me., Pa.,*t Mich.,* Wis.,* Minn.,* Neb.,* Del.,*t "^ Cal.,* Ore., Nev.,* Wash., Dak.,* Ida.,* Mon.,* Uta.,* Ala.,* Ariz.*t (B) To the next of kin: N.H., Vt.,* Til.,* Miss.,** La.* The next of kin in equal degree take equal shares, if more than one. (C) In four states, if there is no father, mother, brother, sister, or descendant thereof, the inheritance is divided, one half going to the paternal, the other half to the maternal, kindred, in the following order, viz. : (1) to the grandfather ; (2) to the grand- mother and the uncles and aunts on the same side, and their descendants, if deceased, in equal shares, per stirpes ; (3) to the great-grandfathers, or great-grandfather, if but one ; (4) to the great-grandmothers or great-grandmother, and brothers and sisters of grandfathers and grandmothers, and the descendants of such of them as are deceased, in equal shares, per stirpes ; (.5) and so on, passing to nearest lineal male ancestors, and, for want of them, to nearest lineal female ancestors in the same degree and descendants of such male and female ancestors ; (6) if no such maternal kindred or paternal kin- dred, both halves go to the paternal or maternal kindred respectively ; (7) if no such kindred, to the husband or wife ; if the husband or wife be dead, to his or her kindred, as if such husband or wife had survived the intestate, and died entitled to the estate : Ii.L,$ Va.,*« W.Va.,* Fla.* (D) To the brothers and sisters of the half blood, and their issue ; if none, to the next of kin in equal degree : Ct.,t " N.J.,t " Pa.,t ".^O.f^ See also $ 3133. (E) To the grandfathers, grandmothers, uncles, and aunts of the deceased, and their de- scendants if deceased, per stirpes ; and so on, passing to the nearest lineal ancestors and their descendants, if deceased, per stirpes : Mo.,* Ark.,*t <' Col.,* Wy.* 400 INTESTATE SUCCESSION. (F) To the 'brothers and sisters both of the father and mother of the intestate and their issue in equal shares, in the same manner as if they had heen brothers and sisters of the intes- tate ; if n\Q, passim. But if not in the same degree, they take per stirpes : N.Y. ; Pa. ; Va. ; W.Va. ; Mo. ; Ark. 2530 ; Tex. (B) The "next of kin" inheriting take per capita in all eases, except (1) grandchildren of brothers and sisters take per stirpes : Pa. Intestates, 26 ; so, (2) children of uncles and aunts : Pa. This seems contradictory with the provision in A, above. Inheritance or succession by right of representation takes place when the descendants of any person deceased take the same share in the estate of the decedent that their parents would have taken if living: Mass. 125,6; Mich. 5784; Wis. 2275; Minn. 4G,15 ; Neb. 1,23,41 ; Del. 85,2 ; Cal 6403 ; Ore. 10,14 ; Nev. 804 ; Wash. 3315 ; Dak. Civ. C. 793 ; Ida. Prob. C. 325 ; Mon. Prob. C. 552 ; Uta. 1884,44,2,19; La. 894. § 3138. Representation, (a) In several states, both as to real and personal estate, there is a general provision " that the descendants of any person deceased shall inherit (per stirpes) the estate which such person would have inherited had 406 INTESTATE SUCCESSIOX. he survived the intestate : E.I 187,5 ; Kan. 33,29 , DeL 89,32-3 ; 85,2 ; N.C. 1281 (3) ; Ky. 31,2 ; Fla. 92,5. See also § 3103. Tliis is, in effect, the case in others : Va. ; W.Va. ; Tenn. 3271 ; Mo. 2161 ; Ark. 2530-1. See above. (B) So, in a few others, as to the next of kin or collaterals : N.Y. 2,2,9 and 14; 0. 4158-9 ; Fla. So, in others ; but no representation among collaterals is allowed, except in the case of the descendants of brothers and sisters of the intestate : Vt. ; Ct, 1885, 110,200; l^.J.Descejit, 2 and 6 ; 111. 39,1; Ala. 2254; Miss. 1271. And in others, there is no representation among collaterals beyond the degree of brothers' and sisters' children : N.Y.* 2,6,3,75 ; N.J.* Orphans Court, 147 ; Pa. Intestates, 25 ; Md. 47,27 ; Tenn.* 3279 ; S.C. 1845 ; Ga. 2484 ; or grandchildren : N.H. 203,3 ; 1883,72 ; Md. ;* Ga. The same would follow in all cases where kin is determined by the civil law," as in § 3139, A. Representation is a fiction of the law, the effect of which is to put the representative in the place, degree, and rights of the person represented. Representation takes place ad infinitum in the direct descending line. It is admitted in all cases, whether the children of the deceased concur with the descendants of a pre-deceased child, or whether, all the children having died before him, the descendants of the children be in equal or unequal degrees of relationship to the deceased. Representation does not take place in favor of the ascendants, the nearest relation in any degree always excluding those of a degree superior or more remote. In tlie collateral line, representation is admitted in favor of the children and descendants of the brothers and sisters of the deceased, whether they come to the succession in concurrence with the uncles and aunts, or whether, the brothers and sisters of the deceased having died, the suc- cession devolves on their descendants in equal or unequal degrees. In all cases in which representation is admitted the partition is made by roots; if one root has produced several branches, the subdivision is also made by roots in each branch, and the members of the branch take between them by heads. Persons deceased only can be represented ; persons alive cannot. One who has renounced.the succession of another may still enjoy the right of representation with respect to that other. Thus it is not necessary that the children who succeed by representation should have been heirs of their father or mother. Although they should have renounced their succession, they are nevertheless competent to represent them in the succession of their grandfather or other ascendants. When a person has been disinherited by his father and mother, or excluded from the suc- cession by reason of unwortliiness, his children cannot represent hira in the succession of their grandfather or other ascendants, if he is alive at the time of opening the succession ; but they can represent him if he died before : La. 894-901. Notes. — ° See, for special cases, in Art. 310, 2^<^ssim. For definitions, see Glossary. * As to the distribution of personal estate only. " In one state, indefinite representation is allowed ; but kin are (leterriiined according to the ranon law, which makes the provision to a certain extent identical with the law of the other states : N. C. § 3139. Next of B^n. It is enacted, in most states, that the next of kin shall be determined according to the rule of the civil law : " Mass. 125,2; Me. 75,2 ; A^t. 2231 ; Ct. 1885,110,200 ; Pa. (by judicial decision) ; 111. 39,1 ; Mich. 5776a; lo. 45 ; Wis. 2272 ; Minn. 46,7 ; Nek 1,23,33 ; Del. 85,2 ; 5,1 ; Ore. 10,6 ; Nev. 797 ; Wa.sh. 3307 ; Ida. Prob. C. 318 ; S.C. 1845 ; Ala. 2255 ; Miss. 1271 ; La. ; N.M. 1437 ; Ariz. 1467. This law would perhaps follow in all states from the use of the phrase next of kin, which is properly used only in connection with personal property. See note. (B) In a few others, it is expressly enacted that degrees of relationship are com- puted according to the common law (that is, canon law) :* Md. 48,17 ; N.C. 1281(6); Ga. 2484. So, probably, in states where the laws are silent. DESCENT AND DISTRIBUTION. 407 So, in Georgia, according to the canon law as practised in the English courts, July 4, 1776. But there is, in Georgia, no distinction between paternal and maternal kindred, after half brothers and sisters, etc. (§ 3107). Next of kin is, in New York, defined to mean those, other than the widow, entitled to share in the distribution of intestate personalty : N.Y. Civ. C. 1870. Kindred and Jcin are further declared, in several states, to mean kindred bj blood : O. 4158—9; Del. 5,1 ; N.M. 973. Presumably this follows everywhere from the use of the word ; for kindred does not mean affinity. The degree of kindred is established by the number of generations, and each gen- eration is called a degree : Cal. 6389 ; Dak. Civ. C. 782 ; Mou. Prob. C. 538 ; Uta. 1884,44,2,6 ; La. 889 ; N.M. The series of degrees forms the line ; the series of degrees between persons who descend from one another is called direct or lineal consanguinity ; and the series of degrees between persons who do not descend from one another, but spring from a com- mon ancestor, is called the collatei'al line or collateral consanguinity : Cal. 6390 ; Dak. Civ. C. 783 J yion.ib. 539 ; Uta. 1884,44,2,7; La. 890; N.M. In the collateral line, the degrees are counted by generations, from one of the rela- tions up to the common ancestor and down to the other relation, the ancestor being counted but once, the decedent excluded, and the relation included ; thus, uncle and niece are related in the third degree : Cal. 6393 ; Dak. Civ. C. 786 ; Mon. Prob. C. 542 ; Uta. 1884,44,2,10; La. 892; N.M. 975. The direct line is divided into a direct line descending and a direct line ascending. The first is that which connects the ancestor with those who descend from him ; the second is that which connects a person with those from whom he descends : Cal. 6391 ; Dak. Civ. C. 784; Mon. Prob. C. 540; Uta. 1884,44,2,8; La. 890; N.M. 974. In the direct line there are as many degrees as there are generations ; thus the grand- son is in the second degree to the grandfather : Cal. 6392 ; Dak. Civ. C. 785 ; Mon. Prob. C. 541 ; Uta. 1884,44,2,9 ; La. 891 ; N.M. Probably in all the states wherein the " next of kin," or degrees of relation- ship are computed, for purposes of descent of real estate, according to the civil law, there is no representation among collaterals, as in § 3138. But not so, in one state : Del. 89,32. And in all the states computing according to the common (i. e., canon) law, there is indefinite representation among collaterals; it is so enacted in a few. See § 3138, B. In Delaware, those collaterals claiming through the nearest common ancestor are to be preferred : Del. 5,1. See also §§ 3107,3109,3121, A. Affinity. The relation of affinity is that caused by marriage. Its computation is "in the same order as in relation by consanguinity." It extends " only to the eighth degree of civil computatit)n, if by legitimate matrimony ; and only to the fourth, if without matrimony." Only the man and woman married or cohabiting are individually connected by iiffinity with the blood relations of the other, and vice versa. This relationship is " only valid for the civil pur- poses which may be explained in the laws and acts of individuals of the human race : " N.M. 976. Notes. — " See Stimson's " Law Glossary," Degree. " At common law, this was the case with re- gard to personal property ; but not to determine the heirs of real estate. It seems to have amounted to much the same thing in practice ; as representation of ancestors was allowed in the latter case, but not in the former. Compare § 3138, 15. § 3140. Foreign Intestates. All personal or real property situated in the State shall be distributed according to the laws of the State regardless of all marital rights which may have accrued in other states and notwithstanding the domicile of the deceased may have been in an- other state, and whether the heirs or persons entitled to distribution be in this State or not ; and the widow shall take her share in the personal property according to laws of this State : Miss. 1270 ; La. 1220. 408 INTESTATE SUCCESSION. Art. 315. Illegitimate Children.* § 3150. Definition. For what children are illegitimate, see § 6630. It will there be seen that in many states children illegitimate when born may be legiti- mated by subsequent marriage or adoption. Such children are of course legitimate for all purposes of inheritance, and are not referred to in this article. So also many statutes provide that an illegitimate child shall be heir of a parent who acknowledges him. For all these, see in Art. 663. Articles 310 and 313, of course, apply only to legitimate relations, in all states. And see Pa. Intestates, 36 ; Ga. 1800. Note to Article. * This article applies commonly to the inheritance both of real and personal property, but in states and cases so noted, to personal property only. § 3151. Inheritance by Bastards, (a) In a few states, illegitimate children are heirs of the mother, and inherit real and personal estate in default of lawful issue: N.Y. 1855,547; N.J.* Orpli. Ct. 147; N.C.« 1281(9). (b) In most states, they inherit the mother's estate with the legitimate chil- dren, share and share alike: N.H. 203,4-5; Mass. 125,3; Me. 75,3; Vt. 2232; R 1. 187,7; V-A. IntestatesA^ \ 0. 4174; Ind.2474; 111. 39,2; Mich. 5773 a; Wis. 2274; lo. 2465; Minn. 46,5; Kan. 33,22; Neb. 1,23,31 ; Md. 47,30; 48,16; Va. 119,5; W.Va. 1882,94,5 ; N.C.'^ 1486 ; Ky. 31,5 ; Tenn. 3274 ; Mo. 2169 ; Ark. 2524 ; Tex. 1657; Cal. 6387; Ore. 10,4 ; Nev. 795 ; Wash. 3305; Dak. Civ. C. 780 ; Ida. Prob. C. 316 ; Mon. Prob. C. 536 ; Wy. 42,7 ; Uta. 1884,44,2,4 ; Ga. 1800; Ala. 2258; Miss. 1275; Fla. 92,8; KM. 1435; Ariz. 1464. (C) In many states, they both inherit from the mother and represent her so as to inherit from her kin share and share alike with the legitimate children : Mass., R.I., Pa., 0., Ind., Ill, Va., W.Va., Mo., Ark., Tex., Miss., Fla. But in many others, (D) bastards do not represent the mother so as to claim any intestate estate from her kindied, either lineal or collateral : Me. ; Mich. ; Wis. ; Minn. ; Neb. ; N.C. ; Ky. ; Cal. ; Ore. ; Nev. ; Wash. ; '^ Dak. ; '^ Ida. ;<* Mon. ; '^ La. 921 ; Ariz. (E) So, in Mississippi, illegitimate children inherit from other children of the mother and her kindred, and their children and descendants inherit from brothers and sisters of their father and mother whether legitimate or illegitimate, and from their grandparents ; but such children of illegitimate persons do not inherit from any ancestor or collateral kindred if there be legitimate heirs of such ancestor, or collateral kindred, in the same degree, to whom the estate would otherwise descend : Miss. 1275. (F) Natural children inherit from the mother in preference to her husband if she leave no kindred lineal or collateral : La. 924. (G) The child legitimated by subsequent marriage of its parents only takes those successions which are opened since such marriage : La. 954. Natural children are called to the legal successi(m of their natural mother, when they have been duly acknowledged by her, if she has left no lawful children or descendants to the exclusion of her father and mother and other ascendants or collaterals of lawful kindred. In case the natural mother has lawful children or descendants, the rights of the natural children are reduced to a moderate alimony, which is de- termined by the rules established in the title : Of Father and Child. Natural children are called to the inheritance of their natural father, who has duly acknowledged them, when he has left no descendants nor ascendants, nor collateral relations, nor surviving wife, and to the exclusion only of the state. In other cases, they can only bring an action against the natural father and his heirs for alimony : La. 918-9. Notes. — « As to real property only. * Such child must have been duly " acknowledged," to in- herit from such parent. '^ As to personalty only. '^ Unless legitimated before the death of the person from whom such estate descends. § 3152. Inheritance from the Father. In Louisiana, a bastard inherits from its father who had been a married man, when such father left no kin nor widow, but does not ILLEGITIMATE CHILDREN. 409 represent him so as to claim from his relations : La. 924. In Indiana, if a man die intestate without heirs resident in the United States at his death, or legitimate children capable of inheriting without the United States, his real and personal property descends to illegitimate cliildren resident iu the United States as if legitimate : Ind. 2475. Provided such children were acknowledged by the intestate in his lifetime ; and testimony of the mother of such children is not sufficient to establish the fact of such acknowledgment : Ind. In New Mexico, natural children, iu the absence of legitimate, are heirs to their father's estate in preference to the ascendants, etc. : N.M. 1435. In Iowa, bastards inherit from the father whenever their paternity is proven during his life : lo. 2466. § 3153. Inheritance by and from Bastards. In North Carolina, bastards born of the same mother are considered legitimate as among themselves and their representatives, so far as aiTects the distribution of personal property and descent of real estate ; that is, in case one of them die without issue, his personal estate is distributed among those persons who would be his next of kin, had he and the other bastards all been born iu lawful wedlock ; and his real estate descends to the brothers and sisters and their issue, as if legitimate, and in default thereof to the mother, as in Art. 310: N.C 1281,1487. In three other states, bastards inherit from each other, children of the same mother, as if l(>gitimate (as to real or personal property) : 0. 1883,81 ; Md. 47,30; Ky. 31,5 ; Ga. § 3154. Inheritance from Bastards. If they have lawful issue, such issue inherit from them as if they were legitimate, in all the states. So, in Illinois (and probably in all), the share of the husband or widow is the same, if they leave issue: 111. 39,2. If they have no lawful issue and die intestate, their estate goes (A) to the widow or husband and to the mother and her kin as if the intestate were legiti- mate, so far as the mother's side is concerned : N.H. 203,4 ; Mass. 125,4 ; Me, 75,4 ; Vt. 2232 ; RI. 187,7 ; N.Y. 2,6,3,75 ; 2,2,14 ; N.J. Descent, App. 1 ; Orph. Ct. 147 ; Pa. Intestates, 40 ; 0. 4174 ; Ind. 2477 ; Mich. 5774a ; Wis. 2273 ; lo. 2465 Minn. 46,6 ; Kan. 33,22 ; Neb. 1,23,32 ; Md. 47,30 ; Del. V. 11, C. 243 ; Va. W.Va. ; Ky. 31,5 ; Tenn. 1885,34 ; Mo. ; Ark. ; Tex. ; Cal. 6388 ; Ore. 10,5 ; Nev, 796 ; Col. 1048 ; Wash. 3306 ; Dak. Civ. C. 781 ; Ida. Prob. C. 317 ; Mon. Prob. C, 537 ; Wy. 42,10 ; Uta. 1884,44,2,5 ; Ga. 1800 ; Ala. 2259 ; Fla. ; Ariz. 1465 For other citations, see § 3151. Except that (1) all the estate goes to the widow or husband, if any, in preference to the mother and her kin: 111., Ore., Nev., Wy., Ga. And (2) if the bastard leave husband or widow, he or she shares equally with the mother, or her descendants or heirs : Me. (3) If no issue, or widow or husband, half goes to the mother, and half to her descendants or kindred : Col., Wy. (4) If no issue, or widow or husband, in four states, (a) to the mother and his uterine brothers and sisters, legitimate or not, and their descendants, one half to the mother, the other half to her children and their descendants, in equal shares per stirpes. If none such, to the next of kin of the mother according to tlie civil law : 111., Col., Wy. But in others, (/3) his mother and illegitimate and uterine brothers and sisters inherit his real or personal estate equally, and the issue of such deceased brothers and sisters per stirpes : Ga. (B) In Louisiana, the estate of bastard deceased without issue descends to the fjither or mother who has acknowledged him, or in equal parts to both, if both have acknowledged him : La. 922. If the father and mother have died, to his natural brothers and sisters, or their descendants : La. 923. In Georgia, if a bastard dies intestate leaving no widow or lineal descendant, or mother or uterine brother or sister or descendant of uterine brother or sister, the brothers and sisters uterine who are legitimate, and tlie issue of such deceased, x>er stirpes, may inherit ; in default of such persons, the inheritance goes among the maternal kindred of the intestate bastard as iu other cases of descent: Ga. 1801. 410 INTESTATE SUCCESSION. § 3155. Inheritance through Bastards. The lawful issue of a bastard represent it and take by descent any estate which the parent might have taken if living : N.H. 203,4; Mass. 125,3; 111. Art. 316. Advancements. § 3160. Definitions. An advancement is defined to be any provision by a parent made to, and accepted by, a child or descendant out of his estate, either in money or property, during his lifetime : Pa. Intestates, 35 ; O. 4169 ; Del. 85,6 ; N.C. 1281(2) ; Ga. 2579. But in several states, a portion given by will is also deemed an advancement, and will be so considered in distributing any estate as to which the deceased may have died intestate : Va. 119,14 ; W.Va. 1882,94,13 ; Ky. 31,15 ; Tenn. 3281. In one other, any indebtedness of the heir may be taken into consideration in the distribution of the estate like an advancement : N.H. 203,10. In two states, an estate or interest given by a parent to a descendant by virtue of a beneficial power, or a power in trust with right of selection, is deemed an advance- ment : N.Y. 2,1,2,127; Tenn. 3283. In Virginia, a provision for an advancement to any person shall be deemed a satisfaction in whole or in part of a devise or bequest to such person contained in a previous will, if it would be deemed such in case the devisee, etc., were a cliild of the testator ; and whether he be a child or not, it shall be so deemed in all cases in which it shall appear from parol or other evidence to have been so intended : Va. 118,12. A portion given in trust for the benefit of a child is an advancement as if given dhectly : Ga. 2581. See also ^ 2818. § 3161. What is not an Advancement. Maintaining, educating, or giving money to a child under majority without any view to a portion or settlement in life, is not .deemed an advancement : N.Y. 2,6,3,78 ; 2,2,26 ; Ind. 2408 ; Md. 48,7 ; Ky. 31,15 ; Mo. 2167 ; Ark. 2539 : Col. 1043 ; Wy. 42,5 ; Ga. 2579 ; Ala. 2267. Donations from affection and not made with a view of settlement nor intended as advancements, shall not be accounted for as such : Md., Ga., Ala. Nor shall the support of a child under the parental roof, although past majority, nor the ex- penses of education, be held as advancements unless charged as such by the parent : Md. ; Ga. 2579. § 3162. Proof of Advancement. That is an advancement (A) which is ex- pressed in the gift or grant to be so made :" N.H." 203,11 ; Mass. 128,3 ; Me. 75,5 ; Vt.« 2246 ; 111 39,7 ; Mich. 5780 ; Wis. 3959 ; Minn. 46,11 ; Neb. 1,23,37 ; Cal. 6397 ; Ore. 10,10 ; Nev. 800 ; AVash. 3311 ; Dak. Civ. C 790 ; Ida. Prob C. 321 ; Mon. Prob. C. 546 ; Uta. 1884,44,2,14 ; Ariz. 1471. (b) When the convey- ance or delivery was charged by the intestate in writing : N.H., Mass., Me., Vt., Mich., Wis., Minn., Neb., Cal., Ore., Nev., Wash., Dak., Ida., Mon., Uta., Ariz. So, when a note or memorandum of it was made by him or bis order : N.H., Me. It is sufficient (as to personal estate) if it was delivered expressly for that purpose in the presence of two witnesses who were desired to take notice thereof : N.H., Vt., E.I. (c) When it ^vas acknowledged in writing as such by the person advanced : N.H.,« Mass., Me., Vt.. 111., Mich., Wis., Minn., Neb., Cal, Ore., Nev., Wash., Dak, Ida., Mon., Uta., Ariz. ADVANCEMENTS. 411 In two states, when a parent dies intestate who had in his lifetime given personal property to children, or put them in actual possession of it, each such child shall give to tlie executor, etc., an inventory on oath, stating particulars of property so received iu the lifetime of the parent, and, in default thereof, is entitled to no distributive share: N.C. 1484,1485; Ala. 2269,2272. So, if tlie person advanced be dead, his legal representatives : Ala. 2270. Note. — "As when the consideration be expressed to be /or love and affection, etc. But see § 3161. § 3163. General Law. When tlie parent dies intestate who has made ad vance- rneuts to the children (or other heirs ; see below), (A) if such advancements in all exceed the distributive share of the heir so advanced in both real and per- sonal property, such heir (or his representative in the distribution, if deceased) shall receive nothing further from the estate, but need refund no part of the property advanced : N.H. 203,9 ; Mass. 128,1 Me. 75,6 ; Yt. 2247 ; E.I 187,18 ; Ct. 1885,110,198 ; KY. 2.2,23 ; N.J." Descent, 1 ; Pa. Intestates, 35 ; O. 4169-70 ; Iiid. 2407,2479 ; 111. 39,4 ; Mich. 5777a; Wis. 3957 ; lo. 2459 ; Minn. 46,8-9 ; Kan. 33,26-7 ; Neb. 1,23,34-5 ; Md.« 47,31 ; 48,7; Del." 85,6 ; W.Ya. 1882,94,13 ; N.C.° 1281(2) ; Ky. 31,15 ; Tenn. 3281 ; Mo. 2166 ; Ark. 2536-7 ; Tex. 1651 ; Cal. 6395-6 ; Ore. 10,7-9 ; Nev. 798-9 ; Col. 1042,3624 ; Wash. 3308 ; Dak. Civ. C. 788-9 ; Ida. Prob. C. 319-320 ; Mon. Prob. C. 544-5 ; Uta. 1884,44, 2,12-13; S.C. 1849; Ga. 2582; Ala. 2262-3; Miss. 1276; Fla. 92,6; Ariz. 1468-9. (B) And if such advancements are not equal to such shares, (1) the child ad- vanced shall have so much of the estate as shall make all the shares equal {i. e., in addition, without coming into hotchpot) : N.H. ih. 9-10 ; Mass. ; R.I. ; Ct. ; N.Y. ib. 24 ; Ind. ; Mich. 5778a ; Wis. ; Del. ; KG. ; Ky. ; Ark. ; Cal. ; Ore. ; Nev. ; Wa.sh. 3309 ; Dak. ; Ida. ; Mon. ; Uta. ; Ga. ; Ariz. (2) He takes his share of the estate, real and personal, as if no advancement were made, but only if he come into hotchpot : Md." 47,31 ; Ya. ; W.Ya. ; Mo. ; Tex. ; Col. ; Mi.ss. ; Fla. (C) And if the advancement exceed the share in either real or personal property, the person advanced shall not refund any, but shall receive so much less of the other property, personal or real respectively, in distribution as will make his aggregate share equal to the rest : Mass. ib. 2 ; Me. 75,7 ; Yt. 2248 ; N.Y. 2,6,76-7 ; 0. 4171; 111. 39,6 ; Mich. 5779a; Wis. 3958 ; Minn. 46,10 ; Neb. 1,23,36 ; N.C. ; Tenn. 3282 ; Ore. ; Wash. 3310 ; Ala. 2264 ; Ariz. 1470. (D) So, in states where the foregoing applies only to realty, if a child has been ad- vanced iu personalty by portion equal to his intestate share of personalty, he receives no personalty by distribution, but need refund no part of the advancement ; if the advancement is not equal to such share, he has so much of personalty as will make all the shares of personalty equal : N.J. Orph. Ct. 147 ; Md. 48,7 ; N.C. (E) In Wyoming, '' where any of the children of the intestate shall have received in his lifetime any real or personal estate by way of advancement, and the other heirs desire it to be charged to him, the probate judge shall cite the parties to appear before him, shall hear proof upon the subject, and shall determine the amount of such advancement to be thus chai'ged : " Wy. 42,4. Notes. — ° As to real property only. * i. e., he may do either, under (1) or (2). § 3164. Advancement to Ancestors. So, in most states, as to all the above provisions, of his representatives in distribution if the person advanced have de- ceased : Me. 75,7 ; Yt. 2249 ; N.Y. ; N.J. ; Ind. ; 111. 39,8 ; Mich. 5782 ; Wis. 3960 ; Minn. 46,13 ; Neb. 1,3,39 ; Ya. ; W.Ya. ; N.C. ; Cal. 6399 ; Ore. 10,12 ; Nev. 802 ; Wash. 3313 ; Dak. Civ. C. 792 ; Ida. Prob. C. 323 ; Mon. Prob. C. 548 ; Uta. 1884,44,2,16 ; Ga. ; Ala. 2266 ; Ariz. 1473. 412 INTESTATE SUCCESSION. § 3165. Hotchpot. In a few states, when an advancement is brouglit into reckoning for the purpose of determining the children's shares, the widow's share is not thereby increased ; but she has her share only in the actual surplus in possession of her husband at his death : Mass. 128,6 ; Md. 48,7 ; Del. 85,6 ; Ky. 31,16 ; Ore. 10,3 ; AVash." 3317. But expressly otherwise, iu two states: N.C. 1483; Ga. Note. — <» As to personalty only. § 3166. Descent of Advanced Property. If the decedent leave an estate which came to him as an advancement from the father, who is living, such estate de- scends to him if there are no issue nor widow nor husband : Uta. 1884,44,2,18. § 3167. Value of. The above memorandum (§ 3162) is not conclusive as to the valuation of the property unless inserted or referred to in the advancer's will : Ga. 2580. In most states, the value of an advancement is deemed to be that, if any, which was (1) acknowledged by the child or heir by an instrument in writing or receipt : Mass. 128,4 ; Me. 75,6 ; Vt. 2250 ; N.Y. 2,2,25 ; 0. 4172 ; 111. 39,5-6 ; Mich. 5781 ; Wis. 3959 ; Minn. 46,12 ; Neb. 1,23,38 ; Ark. 2538 ; Cal. 6398; Ore. 10,11 ; Nev. 801 ; Wash. 3312 ; Dak. Civ. C. 791 ; Ida. Prob. C. 322 ; Mon. Prob. C. 547 ; Uta. 1884,44,2,15 ; Ala. 2265 ; Ariz. 1472. Or (2) expressed in the conveyance or charge thereof by the intestate : Mass. ; Me. 75,6 ; Vt. ; 0. ; 111. ; Mich. ; Wis. ; Minn. ; Neb. ; Cal. ; Ore. ; Nev. ; Wash. ; Dak. ; Ida. ; Mon. ; Uta. ; Ala. ; Ariz. (3) So, in one other, it may be the value expressed by the intestate at the time of delivering it before two witnesses : Vt. Every advancement is estimated at its value at the time of advancement : Mass. ; Me. ; Vt. ; N.Y. ; 0. ; Ind. 2480 ; 111. ; Mich. ; Wis. ; Minn. ; Neb. ; Md. 47,31 ; Ky. 31,15 ; Ark. ; Tex. ; Cal. ; Ore. ; Nev. ; Wash. ; Dak. ; « Ida. ; Mon. ; Uta. ; Ga. 2583 ; Ala. ; Miss. 1276 ; Fla. 92,6 ; Ariz. Unless a value is so agreed upon at the time of acceptance, or otherwise determined as above : Mass., Me., Vt., Pt.I., NY., 0., UL, Mich., Wis., Minn., Neb., Ark., Cal, Ore., Nev., Wash., Dak., Ida., Mon., Uta., Ala., Ariz. No interest is charged upon the value of the advancement until the time of the first dis- tribution of the estate, from which date advancements are reckoned, with regard to interest, in the same manner as an equal amount of the estate received at that time : Ga. The improvements of real estate advanced, made by such child or children, are not to be considered in computing the value : S.C. 1849. § 3168 Advancements to Other Heirs. A portion given to the children of a deceased child is an advancement to that distributive share of the estate : Me. 75,5-7 ; R.I. 187,18 ; Ga. 2581. So, in most states, a portion given to any de- scendant, to a child or the issue of children : Mass. 128,1 and 5 ; Me. 75,5 ; Vt. 2246 ; Ind. 2407 ; AVis. 3956 ; Neh 1,23,.34 ; Md." 47,31 ; Del." 85,6 ; Va. 119,14 ; W.Va. 1882,94,13 ; Ky. 31,15 ; Cal. 6395 ; Col. 3624 ; Wash. 3308 ; Dak. Civ. C. 788 ; Ida. Prob. C. 319 ; Mon. Prob. C. 544 ; Uta. 1884,44,2,15 ; S.C. 1849; Ala. 2262. So, a portion given to an heir of deceased, or any person through whom such heir claims : N.H. 203,9. Otherwise, or in other states, an advancement can be made to children only : N.C. 1281 2), See also § 3160. Note. — " As to real property only. § 3169. Partitions made by Parents among their Descendants. Fathers and inothors and other ascendants may make a distribution and partition of their property among their children and legitimate descendants, either by designating the quantum of the parts and CIVIL LAW OF COLLATIONS. 413 partitions which they assign to each of them, or in designating the property that shall compose their respective lots. These partitions may be made by act inter vivos or by testament. Those made by an act inter vivos can have only present property for their object, and are subject to all the formalities and conditions of donations inter vivos. Those made by testament must be made in the forms prescribed for acts of that kind, and are subject to the same rules. If the partition, whether inter vivos or by testament, has not comprised all the property that the ascendant leaves on the day of his decease, the property not comprised in the partition is divided according to law. If the partition, whether inter vivos or by testament, be not made amongst all the children living at the time of the decease and the descendants of those predeceased, the partition shall be null and void for the whole. The child or descendant who had no part in it may require a new partition in legal form. Partitions made by ascendants may be avoided when the advantage secured to one of the co-heirs exceeds the disposable portion. The child who objects to the partition made by the ascendant must advance the expenses of having the property estimated, and must ultimately support them and the costs of suit, if his claim be not founded. The defendant in the action of rescission may arrest it by offering to the plaintiff the supple- ment of the portion to which he has a right. The rescission of the partition does not carry with it the nullity of a donation made as an advantage : La. 1724-1733. Art. 317. Civil La-w of Collations. § 3170. What Collation is, and by -whom it is Due. The collation of goods is the supposed or real return to the mass of the succession whicli an heir makes of property wliich he received in advance of his share or otherwise, in order that such property may be divided together with the other effects of the succession. Children or grandchildren coming to the succession of their fathers, mothers, or other ascend- ants must collate what they have received from them by donation inter invos, directly or indi- rectly ; and they cannot claim the legacies made to them by such ascendants unless the donations and legacies have been made to them expressly as an advantage over their co-heirs, and besides their portion. This rule takes place whether the children or their descendants succeed to their ascendants as legal or as testamentary heirs,and whether they have accepted the succession unconditionally or with the benefit of inventory. The obligation of collating is founded on the equality which must be naturally observed be- tween children and other lawful descendants who divide among them the succession of their father, mother, and other ascendants ; and also on the presumption that what was given or bequeathed to children by their ascendants was so disposed of in advance of what they miglit one day expect from their succession. Collation must take place whether the donor has formerly ordered it or has remained silent on the subject ; for collation is always presumed where it has not been expi-essly forbidden. But things given or bequeathed to children or other descendants by tlieir ascendants shall not be collated, if the donor has formally expressed his will that what he thus gave was an ad- vantage or extra part, unless the value of the object given exceed the disposable portion ; in which case the excess is subject to collation. The declaration that the gift or legacy is made as an advantage or extra portion may be made not only in the instrument where such disposition is contained, but even afterwards, by an act passed before a notary and two witnesses. The declaration that the gift or legacy is intended as an advantage or extra portion may bo made in other equivalent terms, provided they indicate in an unequivocal manner that such was the will of the donor. If, upon calculation of the value ot advantages thus given, and of the other effects remaining in the succession, such remaining part should prove insufficient to give to the other children their legitimate portion, the donee would tlien be obliged to collate the sum by him received, as far 414 INTESTATE SUCCESSION. as necessary to complete such portion, though he would wish to keep the donation and re- nounce the iuheritance ; and in this calculation of the legitimate portion the property given or bequeathed by the ascendants, not only to their children, but even to all other persons, whether relations or strangers, must be included. The obligation of collating is confined to children or descendants succeeding to their fathers and mothers, or other ascendants, whether ab intestato or by virtue of a testament. Therefore tliis collation cannot be demanded by any other heir, nor even by the legatees or creditors of the succession to which the collation is due. Such children or descendants only are obliged to collate who have a right to a legitimate portion in the succession of their fathers, or inothers, or other ascendants. Therefore natural children, inheriting from their mother or father in the cases prescribed by law, are not liable to any collation between them, if they have not been expressly subjected to it by the donor, because the law gives them no right to a legitimate portion in their suc- cessions. If children, or other lawful descendants holding property or legacies subject to be collated, should renounce the succession of the ascendant from whom they have received such property, they may retain the gift or claim the legacy to them made without being subject to any collation. If, however, the remaining amount of the inheritance should not be sufficient for the legiti- mate portion of the other children, including in the succession of the deceased the property which the person renouncing would have collated had he become heir, he shall then be obliged tu collate up to the sum necessary to complete such legitimate portion. To make legitimate descendants liable to collation as prescribed in the preceding paragraphs, they must appear in the quality of heirs to the succession of the ascendants from whom they immediately have received the gift or legacy. Therefore grandchildren to whom a gift was made or a legacy left by their grandfather or grandmother, after the death of their father or mother, are obliged to collate when tliey are called to the inheritance of the grandfather or grandmother jointly with the other grandchil- dren, or by representation with their uncles or aunts, brothers or sisters of their father or mother, because a legitimate portion is due to them in the estate of their grandfather or grand- mother, on which it is presumed that their grandfather or grandmother had intended to make the gift, or leave the legacy by anticipation. But gifts made or legacies left to a grandchild by his grandfather or grandmother dur- ing the life of his father are always reputed to be exempt from collation, because while the fiither is alive there is no legitimate portion due to the grandchild in the estate of his grandfather. The father inheriting from the grandfather is not liable to collate the gifts or legacies left to his child. In like manner, the grandchild, when inheriting in his own right from the grandfather or grandmother, is not obliged to refund the gifts made to his father, even though he should have accepted the succession ; but if the grandchild comes in only by right of representation, he must collate what had been given to his father, even though he should have renounced his inheritance. What has been said in the four preceding paragraphs of grandchildren inheriting from their grandfather or grandmother must be understood of the great-grandchildren and other lawful descendants called to inherit from their ascendants, either in their own name or by right of representation: La. 1227-1241. § 3171. To whom the Collation is Due, and what Things are Subject to it. The collation is made only to the succession of the donor. Thus, in case of a father having alone settled a dovvTy on one of his children, the collation is only due to his succession. But if the father and mother have jointly settl(;d the dowry, the collation is to be made by halves to each of their successions, conformably to the rules estab- lished in the title : Of the Marriage Contract (Art. G43). Collation is due for what has been expended by the father and mother to procure an estab- lishment for their legitimate descendant coming to their succession, for the settlement of dowry, or for the payment of his debts. Neither the expenses of board, support, education, and apprenticeship are subject to colla- tion, nor are marriage presents which do not exceed the disposable portion. CIVIL LAW OF COLLATIONS. 415 The same rule is established with respect to things given by a father, mother, or other ascendant by their own hands to one of their children, for his pleasure or other use. The heir is not bound to collate the profits he has made from contracts made with his ascendant to whom he succeeds, unless the contracts at the time of their being made gave the heir some indirect advantage. Also, no collation is due for a partnership made without fraud with the deceased, if the con- ditions of the partnership are proved by an authentic act. The advantage which a father bestows upon his son, thougb in any other manner than by donation or legacy, is likevi-ise subject to collation. Thus, when a father has sold a thing to lii.s son at a very low price, or has paid for him the price of some purchase, or has spent money t(» improve his son's estate, all that is subject to collation. The obligation of collation does not exclude the child or descendant coming to the succes- sion of his father, mother, or other ascendant, from claiming wages which may be due to him f )r having administered the property of the ascendant, or for other services. Immovable property given by a father, mother, or other ascendant to one of their chil- dren or descendants, and which has been destroyed by accident while in the possession of the donee, and without his fault, previous to the opening of the succession, is not subject to col- Lition. If, on the contrary, it is by the fault or negligence of the donee that the immovable property has been destroyed, he is bound to collate to the amount of the value which the property would have had at the time of the opening of the succession : La. 1242-1250. § 3172. How Collations are Made. Collations are made in kind or by taking less. The collation is made in kind when the thing which has been given is delivered up by the donee to be united to tlie mass of the succession. The collation is made by taking less when the donee diminishes the portion he inherits in proportion to the value of the object he has received, and takes so much less from the surplus of the effects (of the succession which is carried into effect), as is explained in the chapter which treats of partitions. In the execution of the collation it must first be considered whether the things subject to it are movables or immovables. If an immovable has been given, and the donee hath it in his possession at the time of the partition, he has the choice to make the collation in kind or by taking less, unless the donor has imposed on him the condition of making the collation in kind ; in which case it cannot be made in any other manner than that prescribed by the donor, unless it be with the consent of the other heirs, who must be all of age, present or represented in this State. The donee who collates in kind an immovable which has been given to him must be reim- bursed by his co-heirs for the expenses which have improved the estate, in proportion to the increase of value which it has received thereby. The co-heirs are bound to allow to the donee the necessary expenses which he has incurred for the preservation of the estate, though they may not have augmented its value. As to works made on the estate for the mere pleasure of the donee, no reimbursement is due to him for them ; he has, however, the right to take them away, if he can do it without injuring the estate, and leave things in the same situation they were at the time of the donation : La. 1251-1258. Expenses made on immovable property are distinguished by three kinds : necessary, useful, and those for mere pleasure. Necessary expenses are those which are indispensable to the preservation of the thing. Useful expenses are those which increase the value of the immovable property, but without which the estate can be preserved. Expenses for mere pleasure are those which are only made for the accommodation or con- venience of the owner or possessor of the estate, and which do not increase its value. The donee, who collates in kind the immovable property given to him, is accountable for the deteri(jrations and damage which have diminished its value, when caused by his fault or negligence. If within the time and in the form prescribed in the chapter which treats of partitions, the donee has made his election to collate in kind the immovable property which has been given to him, and it is afterwards destroyed, without the act or fault of the donee, tlie loss is borne by the succession, and the donee shall not be bound to collate the value of the property. 416 INTESTATE SUCCESSION. If the immovable property be only destroyed in part, it shall be collated in the state in which it is. But if the immovable property is destroyed after the donee has declared that he wishes to collate by taking less, the loss is his, and he is bound to take less from the succession, in the same manner as if the property had not been destroyed. When the collation is made in kind, the effects are united to the mass of the succession free from all charges created by the donee, but creditors holding mortgages may intervene in the partition, and make opposition to the collation which may injure their rights. In the case mentioned in the preceding paragraph, if the property mortgaged, which has been collated in kind, falls by the partition to the donee, the mortgage continues to exist thereon as if it had never been collated ; but if the donee receives for his portion other movables or im- movables of the succession, the creditor shall have a privilege for the amount of his mortgage on the property which has thus fallen to his debtor by the partition. When the gift of immovable property, made to a lawful child or descendant, exceeds the portion which the ascendant could legally dispose of, the donee may make the collation of this excess in kind, if such excess can be separated conveniently. If, on the contrary, the retrenchment of the excess over and above the disposable portion cannot conveniently be made, the donee is bound to collate the excess by taking less, as is hereafter prescribed for the cases in which the collation is made of immovable property given him otherwise than as advantage or extra portion. The donee, who makes the collation in kind of the immovable property given to him, may keep possession of the same until the final reimbursement of the sums to him due for the necessary and useful expenses which he has made thereon, after deducting the amount of tlie damage the estate has suffered through his fault or neglect, as is before provided. When the donee has elected to collate the immovable property given him, by taking less on the part which comes to him from the succession, the collation must be made according to the value which the immovable property had at the opening of the succession, a deduction being made for the expenses incurred thereon, in conformity with what has been heretofore pre- scribed. If the donee has voluntarily alienated the immovable property which has been given him as an advantage or extra portion, if he has pennitted it to be seized and sold for the payment of his debts, or if it has been destroyed by his fault or negligence, he shall not be the less bound to make the collation of it, according to the value which the immovable would have had at the time of the opening of the succession, deducting expenses, as is provided in the foregoing paragraph. But if the donee has been forced to alienate the immovable property, he shall be obliged to collate by taking less the price he has received from this sale and no more. As, for example, if the donee shall be obliged to submit to a sale of the immovable for some object of public utility, or to discharge a mortgage imposed by the donor, or because the immovable was held in common with another person who has prayed for the sale iu order to obtain a partition of it. If the immovable property which has been given has been sold by the donee, and afterwards is destroyed by accident in the possession of the purchaser, the donee shall only be obliged to collate by taking less the price he received for the sale. When the collation is made by taking less, the co-heirs to whom the collation is due have a right to require a sale of the property remaining to the succession in order to be paid from the proceeds of this sale not only the collation which is due to them, but the part which comes to them from the surplus of these proceeds, unless they prefer to pay themselves the amount of the collation due to them by taking such movables and immovables of the succession as they may choose, according to the appraisement in the inventory, or the appraisement which serves as a basis to the partition. If the co-heirs to whom the collation is made by taking less wish that the effects <,)f the succession be sold in order that they may be paid what is due them, they are bound to decide thereon in three days from their being notified of the motion of the donee to that effect, before the judge of the partition ; otherwise they shall be deprived of this right, and shall be considered as having consented to receive payment of the colla- tion due them in effects and property of the succession, or otherwise, from the hands of the donee. When the co-heirs, thus notified, require the sale of the effects of the succession to pay CIVIL LAW OF COLLATIONS. 417 themselves the collation due them, the sale shall be made at public auction, in the same manner as when it is necessary to sell ju'operty held in common in order to efiect a partition. If, on the contrary, the co-heirs to whom the collation is due prefer to be paid the amount • thereof in property and ejQTects of the successit>n, or are devested of their right to require the sale of these efl'ects, they shall be paid the amount of the collation in movables, immovables, and other effects of the succession, in the same manner as is prescribed in the chapter which treats of partitions. But in no case will these heirs be obliged to receive in payment credits of the succession. If there are no effects in the succession, or not sufficient to satisfy the heirs to whom the collation is due, the amount of the collation, or the balance due on it, shall be paid them by the heir who owes the collation. This heir shall have one year to pay the sum thus by him due, if he furnish his co-heirs with his obligation payable at that time, with eight per cent interest, and give a special mort- gage to secure the payment thereof either on the immovable property subject to the collation, if it is in his possession, or, in want thereof, on some other immovable property which may suit the co-heirs. If the heir who has been allowed to furnish his obligation as mentioned in the preceding paragraph fails to fulfil his engagement at the expiration of the year granted to him, the heirs in whose favor this obligation has been made, or their representatives, have a right to cause the property mortgaged to them to be seized and sold, without any appraisement, and at the price offered at the first exposure for sale. If the property thus seized and sold is the same which was subject to the collation, the co- heirs seizing, or their representatives, shall be paid the amount of their debt due for the colla- tion, by privilege and in preference to all the creditors of the donee, even to those to whom he may have mortgaged the property for his own debts or engagements previous to the opening of the succession, saving to these mortgage creditors their recourse against other property of the donee. If the donee who owes the collation has, before the opening of the succession, voluntarily sold the immovable property given to him, and his other property is not sufficient to satisfy his co-heirs for the collation due them, the co-heirs, after a previous discussion of the effects of the donee, shall have the right of claiming the immovable property thus sold from those who may be the purchasers or detainers thereof, who shall be compelled to give it up as an object which had never belonged to the donee. The third purchaser or possessor of the real estate subject to collation may avoid the effect of the action of revendication by paying to the co-heirs of the donee to whom the collation is due, to wit : the excess of the value of the property above the disposal portion, if the donation has been made as an advantage or extra portion, or the whole of the value thereof, if the dona- tion has been made without this provision, by fulfilling in this respect all the obligations by which the donee himself was bound towards the co-heirs. When movables have been given, the donee is not permitted to collate them in kind ; he is bound to collate for them by taking less, according to their appraised value at the time of the donation, if there be any annexed to the donation. In default thereof, recourse may be had to other evidence to establish the value of these movables at the time of the donation. Therefore the donation of movables contains an absolute transfer of the rights of the donor to the donee in the movables thus given. The collation of money may be made in money or by taking less, at the choice of the donee who is bound to decide thereon, in the same manner as is prescribed for the collation of immov- able property. If it be movables or money, of which the donee wishes to make the collation by taking less, he has the right of compelling his co-heirs to pay themselves the collation due to them in money, and not otherwise, if there be sufficient in the succession to make these payments with. But if there is not sufficient money in the succession to pay such heirs the collation due to them, they shall pay themselves by taking an equivalent in the other movables or immovables of the succession, as is directed with respect to the collation of immovable property. In case tliere be no property or effects in the succession to satisfy the collations due for mov- ables or money given, the donee shall have, for the payment of the sum due to his co-heirs, the same terms of payment as are given for the payment of the amount of collations of im- movable property, and under the same conditions as are before prescribed : La. 1259-1288. 27 418 OF THE RIGHTS OF THE WIDOW AND HUSBAND. CHAPTER v.— OF THE RIGHTS OF THE WIDOW AND HUSBAND. Art. 320. Dower. § 3200. Note. We may distinguish, besides homestead and community property, three different interests the widow may have in the estate of a deceased husband. These are : (1) dower as at common law or as modified by statute ; (2) the intestate share, or the estate which the widow will have in a husband's real or personal pi'operty if he die intestate ; (3) the share in lieu of will, or estate she will have in his real or personal property if he leave a will which she waives or renounces. The share in lieu of will is frequently, but not always, the intestate share ; and the intestate share is frequently, but not always, dower in the real estate and the intestate share in the personalty. For the intestate share, see Art. 310, the widow's share in the respective cases by descent and distribution. For the share in lieu of will, see Art. 326. In a few states, the widow may waive dower, and take a statutory provision in lieu thereof; see § 3263, This may be conveniently termed (4) the estate in lieu of dower. The first class, dower, alone forms the subject of this article. § 3201. General Provisions. Very generally, even in those states where dower has not been formally abolished, it has been practically superseded by the statutes allowing a widow a fixed interest in the real or personal estate of her husband, in lien of dower. See § 3200, class (4). For this reason, in this article, only the creation and extinction of the estate resembling common-law dower is discussed ; as it is confirmed or abolished by the state statutes. For the incidents of dower, and methods of barring dower, see Art. 324. The dower estate, whatever it be, is generally free from all debts of or claims against the husband. It inures to the use of widow for her life : Tenn. 3246. Generally, in states which preserve the dower estate, the widow has her election of dower or the will, and sometimes also of tlie intestate share (Art. 310). See §§ 3244,3262. In Alabama, the widow is entitled to no dower nor distributive share in the husband's estate, if her separate estate, exclusive of the rents, income, and profits, is equal to or greater in value than her dower interest and distributive share of the husband's estate ; if less in value than her dower, she has so much as with her separate estate would be equal to her dower and distributive share in the husband's estate : Ala. 2715-6. The dower interest for this purpose is estimated at seven years' rent of the dower interest : Ala. 2715. In Vermont, the court may deny the widow dower if she was the second wife of the deceased, and an agreement was entered into before marriage ; and the court deem the widow comfort- ably provided for. § 3202. Amount of Dower, (a) In many states, dower has been specially preserved as at common law ; that is, the widow is endowed of one third part of all lands wherein the husband M'as seized of an estate of inheritance, at any time during coverture (unless lawfully barred ; see Art. 324) : Mass. 124,3 ; Me. 103,1 ; E.I. 229,1 ; N.Y. 2,1,3,1 ; N.J. Bower, 1 ; Pa. Bower, 4 ; Intestates, 34 and 6 ; 0. 4188 ; 111. 41,1 ; Mich. 5733 ; Wis. 2159 ; Neb. 1,23,1 ; Del. 87,1 ; Va. 106,1 ; W.Va. 1882,86,1 ; N.C. 2102 ; Ky. 52,4,2 ; Mo. 2186 ; Ark. 2571 ; Ore. 17,1. See, however, F. (b) In many others, dower is absolutely abolished : Ind. 2482 ; To. 2440 ; Minn. 48,1 ; 1875,40,5 ; Kan. 33,28 ; Cal. 5173 ; Nev. 157 ; Col. 1039 ; Wash. 2414, 3304 ; Dak. Civ. C. 779 ; Ida. 1874-5, p. 636,10 ; Wy. 42,1 ; Uta. 1022 ; Miss. 1170 ; Ariz. 1976. THE DOWER ESTATE. 419 [ But in these states, she is nevertheless entitled to a share by descent or intestate share, which frequently resembles common-law dower ; see § 3105. In the laws of these states, subsequent provisions found in this article (320) refer to such intestate share, instead of dower.] (C) In a few states, it seems that dower remains as at common law, either (1) by the silence of the statutes: 'Pa..'^ Dower, 4; (2) or by implication : R.I. 187,8; Md. 65,104; S.C. 1852. (D) In two states, where curtesy is abolished, both the husband and wife are "endowed" as at common law: Me."'^ 65,6-7; 103,14; 111. 41,1. (B) In a few others, the widow is entitled to dower in lands only of which her hus- band died seized: N.H.° 202,2 ; Vt. 2215 ; Ct.'' 1885,110,189; Del. 85,1 ; Teuu. 3244 ; Ga. 1763; Fla. 95,1. And in such, she has a life estate, and on her death it reverts to the heirs of the husband : Fla. 95,4. In Georgia, she is entitled to dower in lands to which the husband obtained title in right of his wife also (whether the husband died possessed of them or not). (F) But in several, when the husband (or wife, in Maine) died without issue and solvent, the widow (or surviving husband, in Maine) is entitled to half the real estate for life, in dower ; otherwise, to one third : Me.« 65,7 ; Del. ; Ark. 2592 ; Ala. 2233. For other states, see § 3105 for similar provisions. For dower upon divorce, see § 6249. For dower of divorced persons, see § 3247. Notes. — " But another statute provides that such dower estate shall be so much of any real estate of the husband as will produce an income equal to one third of the yearly income thereof at the time the husband died or parted with the title : N.H. 202,4. & Only if such deceased wife's estate is solvent. <= Dower is nevertheless practically superseded by the intestate share. See § 3263. «^ Of mar- riages made before April 20, 1877. « Of which he died seized. § 3203. Conveyance by the Husband. In Vermont, the voluntary conveyance by the husband of any of his real estate made during coverture, with intent to defeat dower, and not to take effect until after his decease, is void, so far as concerns her dower : Vt. 2228. (This provision would only seem necessary in states where dower extends only to lands of which the husband died seized, as in $ 3202, E). She is so endowed free of all alienations, debts, and incumbrances made by the husband after marriage. (This would seem to be implied in the law of all the states, except when specially expressed otherwise, as it is part of the common law of dower) : Del. 87,1 ; N.C. 210.3,2106 ; Ark. 2602. In Georgia, no lien created by the husband in his lifetime, though assented to by the wife, shall in any manner interfere with her right to dower : Ga. 1769. But see ^ 3202, E. But the wife is not endowed of land sold by the husband before marriage, though not con- veyed before : Ky. 52,4,5 ; nor of land held only by executory contract, unless so held by the husband at death" (§ 3212) : Ky. 52,4,12. Advancements are not to be considered in deteiTnining the widow's dower : Del. 85,6. § 3204. Inchoate Dower. In one state, when the husband's land is levied on or sold under decree of court, where the inchoate interest is not directed by the court to be barred by virtue of such sale, such interest becomes absolute and vests in the wife as if the husband had died. She has right of possession, and, when sold, may have partition accordingly : Ind. 2508. But not when land sold is of value over $20,000, as to such excess : Ind. 2509. In one other, dower, or the right of dower, is in no case subject to execution for the payment of any debt of the husband during the wife's Ufe : N.C. 2104. So, of course, in all. For other states, see in Part IV. Art. 321. The Dower Estate. § 3210. General Principles. See §§ 3201,3202. § 3211. Dower in Lands not Possessed. The wife has dower of real estate, although there may have been no actual possession or recovery of possession by 420 OF THE RIGHTS OF THE WIDOW AND HUSBAND. the husband in his lifetime : Va. 106,2 ; W.Va. 1882,86,2 ; Ky. 52,4,4 ; Mo. 2207 ; and although the same is held by the husband as joint-tenant, common tenant, or coparcener : Mo. In Ohio, she is alst> endowed of all real estate of which her husband at his decease held the fee in remainder or reversion : 0. 4188. But not until after the particular estate has deter- mined : 0. § 3212. Dower in Equitable Estates, (a) In many states, there is a general provision that the widow is entitled to dower in equitable estates : Ind.* 2491 ; 111. 41,1 ; Md. 45,1 ; Va. 112,17 ; W.Va. 82,17 ; N.C. 2103 ; Tenn. 3244 ; Ala. 2232. And, in particular, in lands of which the husband had a perfect equitable title at death, he having paid all purchaso-money thereof : Ala. (B) In others, there is a special provision that she has dower in a right or interest in laud held by her husband at his decease, by bond, article, contract, lease, or other evidence of claim : 0. 4188 ; 111.''-^ 41,1 ; Ky. 52,4,12 ; Mo. 2188. But such dower in an equitable title does not, in two states, operate to the prejudice of any claim for the purchase-money of such lauds or other incumbrance previously existing on the same : Md., Mo. So, in others, if a husband has made a contract for lands, and at his death the consid- eration has not been paid, but is paid after death out of his estate, wife has her dower in sucli laud as if the legal estate had vested iu the husband during coverture : Ind.* 2493; Mo. 2187. And if only part of the consideration was paid, and the estate is sold upon the husband's death, under the will or by decree of court, the wife is entitled to her third in such estate in proportion to the amount of consideration paid by the husband : lud.'' 2494. Conversely, in Georgia, the widow of one who gave a bond of title or contract of sale is not entitled to dower in the laud affected : Ga, 1763. See also § 3246. Notes. — ° Only if the title be perfected after his decease. *> See § 3202, B. <^ Both husband and wife ; see § 3202. § 3213. Dower in Land Mortgaged after Marriage. (a) It would seem, by the common law, that where there is no special enactment to the contrary the widow is entitled to dower in the whole of land mortgaged or incumbered by the husband after marriage, by a conveyance in which the wife has not joined, and when she has not been otherwise barred. But in those states where she is only endowed of land of which the husband died seized, the law would be otherwise ; see § 3202, E. There is, accordingly, an express provision that the widow is entitled to dower (only) in the equity of redemption of lauds mortgaged by the husband (whether she joined iu the mortgage or not, but qucere) : Vt. 2216. And in other states, she has dower iu lands mortgaged after marriage by deed in ■which she joined, as against every person except the mortgagee, and those claiming under him : Mass. 124,5; Me. 103,12; Va. 106,3; W.Va. 1882,86,3. And if she did not join, she has her dower in the whole free of the mortgage : N.C. 2106. (B) But there is a special provision, in many states, that if* lands were purchased by the husband during marriage and at the same time mort- gaged to secure the purchase-money, slie only has dower in the equity even if she did not join in the mortgage : N.Y. 2,1,3,5 ; Ind. 2495 ; 111. 41,4 ; Mich. 5736 ; Wis. 2163 ; Neb. 1,2.3,4 ; W.Va. ; N.C. 1272,2106 ; Ark. 2575 ; Ore. 17,4 ; Ga. 1763a. And the same is the law as to the husband's curtesy, etc., in any mortgages by the wife : Del. V. 15,165,3 ; V. 16,126. In South Carolina, it is provided that ''nothing in this chapter [concerning the record of deeds] shall be construed to bar any widow of any mortgagor of any lands from her dowry and THE DOWER ESTATE. 421 right in or to said lands, who did not legally join with her husband in such mortgage, or other- wise bar or exclude herself from such dowry or right : " S.C. 1782. In Tennessee, by an anomaly, she has dower in land mortgaged or conveyed by trust-deed to secure debts when the husband dies before foreclosure and sale (and there is nothing to show that this right of dower would not extend to land mortgaged before the marriage) : Tenu. 3245. § 3214. Dower in Lands Mortgaged before Marriage. In this case it is evident that the widow has dower, if at all, only in the et^uity of redemption, and the mortgagee has a good title. The widow would seem to have such dower under the general provision (see § 3203). And in other states, there is a special provision to this effect, and she has dower as against every person but the mortgagee : Mass. 124,5 ; Me. 103,12 ; Vt. 2216 ; N.Y. 2,7,3,4 ; 111." 41,3 ; Mich. 5735 ; Wis. 2162 ; Neb. 1,23,3 ; Va. 106,3 ; W.Va. 1882,86,3 ; Ark. 2574 ; Ore. 17,3. But in Vermont, the probate court has power to give the widow dower in the whole of the lands mortgaged, if the husband left personal estate enough to pay it off: Vt. 2218. And the widow may claim dower in the whole land on paying the heir or other repre- Beutative of the husband her share of the mortgage so paid off: Mass. 124,5; Me. 103,12; Vt. 2216. Note. — " § 3212, note ^ § 3215. Dower in the Estate of a Mortgagee. In a few states, it is provided that a widow is not endowed of lands mortgaged to her husband unless he acquires an abso- lute estate therein during marriage : JST.Y. 2,1,3,7 ; 111." 41,6 ; Ark. 2577. (The same is probably law everywhere ; as a mortgage is commonly declared to pass no title, or to be deemed personalty. See Art. 185.) Note. — « See § 3212, note «. § 3216. Dower in Surplus Proceeds. As to lands mortgaged by the husband before marriage, or after marriage to secure the purchase-money, as in § 3213, B, in most states, (A) the widow, if the lands are sold by the mortgagee, has dower in the proceeds remaining after satisfying the mortgage : Mass. 124,5 ; Me. 103, 12 ; Vt. 2217 ; N.Y. 2,1,3,6 ; 111." 41,5 ; Mich. 5737 ; Wis. 2164 ; Neb. 1,23,5 ; Va. 106,3 ; W.Va. 1882,86,3 ; Ky. 52,4,5 ; Ark. 2576 ; Ore. 17,5. So, if sold by the executor or administrator of the husband : Wis. So, in lands mortgaged by deed in which she joined : Va., Ky. But not when the surplus proceeds were received or disposed of by the husband in his lifetime : Ky. Such dower in pro- ceeds equals the interest or income of one third of the surplus for her life. 111., Mich., Wis., Neb., Ark., Ore. (B) If the heir or other person claiming under the husband pay or satisfy the mortgage, the amount so paid shall be deducted from value of land, and the widow shall have set out to her for dower the value of one third of the residue : Mass. ; Me. ; Vt. ; Mich. 5738 ; Wis. 2165 ; Neb. 1,23,6 ; Ore. 17,6. Note. — « See § 3212, note =. § 3217. Dower in Trust Estates. In New Jersey, it is specially provided that there shall be no dower for the widow of a trustee in the trust estate : N.J. Dotoer, 25. (This rule would seem to hold good in all states by the common law of trusts and joint- tenancy.) § 3218. Dower in Lands Leased and Exchanged. In several states, if a hus- band exchanges one estate for another during marriage, the widow cannot have dower in both, and shall be deemed to take dower in the lands so received in ex- 422 OF THE RIGHTS OF THE WIDOW AND HUSBAND. chano-e if she do not commence proceedings to recover dower in the lands given withfn one year of her husband's death : N.Y. 2,1,3,3 ; IU.« 41,17 ; Mich. 5734 ; Wis. 2161 ; Neb. 1,23,2 ; Ark. 2573 ; Ore. 17,2. In leasehold estates for a term of more than twenty years, she has dower ; but if less than twenty years, she shares as if it were personal property : Mo. 2186. Compare U 1300,1311. When dower is assigned in land held under a lease for years the widow or assignee must pay one third of the rent to the owner of the unexpired residue : Mass. 121,2. ]S"0TE — « See § 3212, note <=. § 3219. Dower in "Wild Land. But in New England, the widow is not generally entitled to dower in wild laud, nor in wild land conveyed by the husband and after- wards cleared ; except wooddots or other land used with the farm or dwelling-house : N.H. 202,3; Mass. 124,4; Me. 103,2; 65,1. Art. 323. Rights of Dowress. § 3230. General Principles. See Life Estates, Art. 133. § 3231. Waste by Dowress. (a) Generally, if a dowress commit or suffer waste, she is liable to the owner of the next estate of inheritance for damages : N.H. 202,6 ; Mass. 124,16 and 179,1 ; Me. 95,1 ; 103,13 ; Vt. 2227 ; E.I. 229,22 ; KY. Civ. C. 1651 ; N.J. Waste, 2>; 111. 41,45 ; Mich. 5754,7940 ; Wis. 2174 ; Neb. 1,23,21 ; Md. 50,221 ; Del. 88,1 ; Ore. 17,22 ; Col. 3574. But so, in one other, only as to wanton waste : 0. 4194. In other states, she is liable like tenants for life (§ 1332) : N.J. She is liable for waste committed by her second husband : Col. He is also liable (1) after her death : Del. 88,3 ; (2) at any time : Md., Col. (B) And in several, a dowress so committing waste forfeits the estate upon which the waste is committed to the remainder-man or reversioner of the freehold : Mass., Me., RI., N.J., 0., 111. See also § 1332. She may, however, take wood for fuel and repairs : N.H., Me. (C) And in Connecticut, a dowress forfeits her estate to the remainder-man in the case of permissive waste, for such time as will enable him to make, out of the rents and profits, the necessary repairs : Ct. 18,11,1,4,3. Compare also $ 1353. § 3232. Repairs. It would seem to foUow from the mere prohibition of per- missive waste that the dowress must keep the estate in sufficient repair, in all the states ; and in some it is specially so expressed : N.H. ; Vt. ; R.I. ; Ct. 1885, 110,191 ; 111. ; Mich. ; Wis. ; Neb. ; Ore. See § 3231 for citations. But in Maryland, it is provided that the Probate Court " shall determine what part of the necessary repairs and improvements shall be borne by the widow : " Md. 50,222. § 3233. Emblements. The widow may, in many states, bequeath the crop in the ground held by her for dower : RI. 229,26 ; N.Y. 2,1,3,25 ; N.J. Wills, 10 ; Pa. Wills, 5 ; Va. 106,14 ; W.Va. 1882,86,14 ; Ark. 2618 ; S.C. 1856. See also § 2630. And if she die intestate it goes to her administrator : Va., W.Va., Ark. The widow's executors may enter and remove buildings or fences erected by her on her dower land : R.I. 1882,286. Art. 324. Barring Dower. § 3240. Note. In the United States there are recognized three ways of barring dower: (1) by jointure or settlement (§§ 3241-3243); (2) by devise or bequest BARRING DOWER. 423 (§ 3244) ; (3) by deed (§ 3245). Dower may also be forfeited by adultery, divorce, etc. (§§ 3246-7). § 3241. By Jointure." Generally, in most states, dower may be barred by a conveyance, gift, or devise of real property, made by any person to, or in trust for, an intended wife, before marriage, by way of jointure or with intent to bar dower (subject to the conditions below) : N.H.*202,11 ; Mass. 124,7 ; Me. 103,7 ; Vt. 2219 ; E.I. 229,23 ; Ct. 1885,110,189 and 193 ; N.Y. 2,1,3,9 ; N.J. Dower, 10 ; 0. 4189 ; Ind/ 2500 ; 111.'- 41,7 ; Mich. 5746 ; Wis. 2167 ; Neb 1,23,13 ; Del. 87,3; Va. 106,4; W.Va. 1882,86,4; Ky. 52,4,6; Mo. 2201; Ark. 2579,2583; Ore. 17,14 ; S.C. 1800 ; Ga. 1764. In several states, dower is equally barred when snch conveyance, etc., is made to the husband and the intended wife : N.Y., N.J., Ind., 111., Mo., Ark. And in Delaware, dower is so barred when a charge upon real estate is made in favor of such intended wife. But in Maryland, the widow is only baired by an estate so settled before marriage hy her husband : Md. 50,226. Conditions. (a) The conveyance, etc., must, in many states, be made (1) with the intended wife's assent : Mass. ; Me. ; N.Y. ; Ind." 2500 ; lU.* 41,7 ; Mich. ; Wis. ; Neb. ; Del. ; Va. 106,5 ; W.Va. 1882,86,5 ; Ky. ; Mo. ; Ark. ; Ore. ; Ga. In Vermont, there is an express provision that the conveyance, etc., will bar dower •whether she consented to it or not : Vt. 2219. (2) Her assent must be evidenced, in many, by her becoming a party to the conveyance: Mass. ; Me. ; N.Y. 2,1,3,10 ; 111.* 41,8; Mich. 5747; Wis. 2168; Neb. 1,23,14; Ark. 2580; Ore. 17,15. In one, it must be signified by her in writing indorsed on, or attached to, the deed : Ind." (3) If the intended wife be under age, (a) her father or guardian may give such assent for her, in several states : N.Y. ; Ind.*- ^ 2503. (j8) She must join with her father or guardian in the conveyance : Mass., Me., lU.,'' Mich., Wis., Neb., Ark., Ore. (y) But in other states, the conveyance, etc., it seems, will fail of effect if she be under age at the time : Del. (B) And in most states, if made without her consent she shall make her elec- tion (§ 3271) of the estate so conveyed, etc., and dower; but shall not be entitled to both : Mass. 124,9 ; Me. 103,9 ; Vt.2219 (see A, above) ; N.Y. 2,1,3,12 ; Ind.* 2504 ; 111.* 41,9 ; Mich. 5749 ; Wis.« 2170,2172, Amt. ; Neb. 1,23,16 ; Va. ; W.Va. ; Ky. ; Ark. 2582 ; Ore. 17,17. But in one state, she may waive such jointure in all cases, whether made with or without her consent : Vt. In several, if made during her infancy, the widow may waive such jointure and claim dower, but shall not be entitled to both : R.I. 229,23 ; N.J. Dower, 12 ; 0. 4189 ; Va. ; W.Va. ; Ky. ; Mo. 2202. (c) In many states, her interest in such conveyance, in order to bar dower, must take effect immediately upon, or no later than, the death of the husband : Mass. ; Me. ; Vt. ; E.I. ; Ct. ; N.J. ; 0. ; Ind. 2502 ; Mich. 5746 ; Wis. 2167 ; Neb. ; Del. ; Mo. 2201 ; Ore. 17,14. And must, in many, be at least for the term of her natural life •/ Mass., Me., R.I., N.J., 0., Mich., Wis., Neb., Del., Mo., Ore. So, in others, the jointure must not be less than a " freehold " estate in lands : Mass. ; Me. ;■. Ind. 2502 ; Mich. ; Wis. ; Neb. ; Ore. But in Rhode Island, it may be made determinable by such acts as would forfeit her dower at common law : R.I. (D) In several, the intent to bar dower must be expressed in the conveyance, etc. : N.H. 202,11; Vt.; Ct. 1885,110,193; lud. 2500; Mo. 424 OF THE RIGHTS OF THE WIDOW AND HUSBAND. The same would probably be implied in Virginia and West Virginia, and perhaps in others. In one state, a jointure made as provided above respectively will also bar the widow's intestate share, if so expressed in the deed creating it : N.H. And the same is prob- ably law in all states. Compare Art. 326. Notes. — " But in most states, dower is not absolutely barred by this, and the widow has her election in all cases ; see § 3243 and below. ^ See § 3202, B. '^ Either husband or wife may so be barred ; see § 3202. '^ Or the mother, if no father. « This provision does not, however, apply to cases where the husband died intestate, sine prole, f This provision is probably implied in the statutes of all the states. § 3242. By Settlement of Personal Property. In most states, the widow's dower may be barred in the same way by a pecuniary provision settled on, or made to, the intended wife before marriage, in lieu of dower : N.H. 202,11 ; Mass. 124,8; Me. 103,8; Vt. 2219; E.I. 229,23; Ct. 1885,110,189; N.Y. 2,1,3,11; 0. 4189 ; Ind. 2500 ; Mich. 5748 ; Wis. 2169 ; Neb. 1,23,15 ; Va. 106,4 ; W.Va. 1882,86,4 ; Ky. 52,4,6 ; Mo. 2201 ; Ark. 2581 ; Ore. 17,16 ; Ga. 1764. But in Maryland, only if settled by her husband : Md. 50,226. In many states, she must assent, as in § 3241 : Mass., Me., N.Y., Ind., Mich., Wis., Neb., Va., W.Va., Ky., Mo., Ark., Ore., Ga. If made without her assent, she may, in many states, elect this or dower, under their several rules as expressed in § 3241 : Mass. 124,9 ; Me. 65,4 ; 103,9 ; Vt. ; R.I. ; N.Y. 2,1,12; Ind." 2.504; Mich.; Wis." 2170; 2172, Amt.; Neb. 1,23,16; Va.; W.Va.; Ky.; Ark. 2582; Ore. 17,17. So, in several states, she has her election, if the pecuuiaiy provision was made be- fore she arrived at full age : R.I. ; 0.4189; Va. ; W.Va.; Ky. ; Mo. 2202. Such pecuniary provision must take effect no later than the husband's death : R.I., Vt., Ct., Mo. Compare § 3241. It must last for the term of her natural life : R.I. Note. — « See § 3241, note «. § 3243. By Settlement after Marriage. Generally, where a corresponding interest in land (see § 3241) or pecuniary provision (see § 3242) is made, conveyed, given, or settled after marriage, the widow has her election of such estate or provision, and dower, but is not entitled to both : Mass. 124,8 ; Me 103,9; 65,4; Vt. 2219; R.I. 229,23; N.Y. 2,1,3,12; N.J. Bmier, 12; O. 4189 ; Ind." 2504 ; 111.*- -^ 41,9 ; Mich. 5749 ; Wis. 2170 ; Neb. 1,23,16 ; Va. 106,5 ; W.Va. 1882,86,5 ; Ky. 52,4,6 ; Mo. 2201-2 ; Ark. 2582 ; Ore. 17,17; S.C. 1803-4; Ga. 1764. In other states, there are no statutes authorizing dower to be barred by conveyance or settlement during mai'riage. Notes. — ° iSee § 3241, note ^ ^ But not, it seems, after marriage, by a settlement of personalty. •^ § 3140, note <^. § 3244. By Husband's "Will. (See also Art. 326.) (a) In most states, if lands are devised or (except in Maryland, Missouri, and Arkansas) pecuniary provision made by the husband's will to or for the widow, she shall not be entitled to claim both this and dower, but must make election : N.H. 202,18 ; Mass. 127,20 ; Me. 10.3,10 ; Vt. 2219 ; Ct. 1885,110,192 and 194 ; N.Y. 2,1,3,13 ; N.J. Bower, 16 ; Pa. i>ow;er, 4; Wilh, 12; O. 5963; Ind. 2505; 1885, Ex. 103; 111. 41,10 (husband or widow) ; Mich. 5750; Wis.« 2171 ; Neb. 1,23,17; Md. 50,227 and 229 ; Va. 106,4; W.Va. 86,5; 1882,94,11; N.C. 2103; Ky. 31,12; Ore. 17,18; Ga. 1764; Fla. 95,1. BARRING DOWER. 425 So, it seems, if a deviso or bequest be made by any person, — the husband or any other: Ark. 2583. But in Kentucky, she may claim dower and distributive share, and be charged with the value of any devise or bequest to her by his will. (B) In a few states, however, ouly a devise bars dower ; and a mere pecuniary pro- vision or bequest of personal property will not bar dower (1) unless so expressed in the will: Md. 50,230; Ga. 1703,1765; (2) in no case: N.J. ; Del. 87,5; Mo. 2199; Ark. 2594-5. . And in two, neither devise nor bequest will bar dower, unless the court deem that such intention appear in the will : Vt,, Ga. But in most states, she is entitled to dower, in addition to the devises or pe- cuniary provisions in the will, if such plainly appear to have been the testator's intention: Mass.; Me. 65,5; 103,10; Vt. 2219 ; Ct. ; 0. ; Ind. ; Mich.; Wis.; Neb. : Va. ; Ky. ; Mo. 2199 ; Ark. ; Ore. Such intention must be expressed in the will: N.J., 111., Md., Del. If in such case she elect dower, slie must convey and release to him the land so devised to her: Ark. 259(3. And this renunciation is deemed sufficient notice of waiver of will: Ark. It must be executed in eighteen mouths after his death, or the widow is deemed to have ac- cepted will : Ark. 2237. (C) Generally, the intestate share of the widow in personalty is barred if she do not waive the will according to Art. 326, as dower would be: Ct. 1885,110, 194; To. 2452; Kan. 117,41; W.Va. ; Miss. 1174; Fla. 95,3. So, by implica- tion, in most states. But if by the will a specific devise or bequest is made to her in lieu of any particular thing or interest to which she would be entitled in case of intestacy, her election to take such devise or bequest, or the thing or interest in which it is given, does not deprive her, or any other per- son, of the riglit to leave the will in other respects intact and unimpaired : Mich. In Maryland, a devise of lands to the widow is construed to be in addition to any jointure or settleuient made before marriage by the husbaud, and she will be entitled to both : Md. 50, 226. In two states, there is a general provision that every devise or bequest by husband or wife to the other is holden to be in lieu of all rights which either have by law in the estate of the other, unless it shall appear that such was not the intention : N.H. 202,18; Miss. 1174. So, in Maryland, a devise and bequest made as above bars both dower and her intestate share ; but if the devise is only of a part of the real estate, or of a part of the personal estate, it bars her only of the real estate or of the personal estate, accordingly : Md. 50,230. Note that, in many states, a devise or bequest in jointure or settlement may be made by the husbaud under the general provisions of §§ 3211-3 : R.I., Ky. § 3245. By Deed. (See also Art. 650.) A woman may, generally, bar her dower by deed executed either (1) jointly with the husband : Mass. 124,6 ; Me. 103,6; Ind. 2491 ; III 30,17 ; Mich. 5745; Kan. 33,8 ; Neb. 1,23,12 ; 1,73,43 ; N.C. 2107; Mo. 2197; Ark. 2586; Ore. 17,13; Ga.« 1764; Ala. 2234; 1885, 65 ; Fla. 95,14-15. (2) Separately, at the time of (except in Massachusetts), or after the convey- ance by the husband : Mass. ; Me. ; N.J. 1881,136 ; Mich. ; Neb. ; Ore. ; Ala. ; Fla. (3) Jointly, after the conveyance by the husband : Mass., Me., Neb. (4) By deed executed like ordinary deeds of a wife's separate real property (see Art. 647) : R.I. 229,1 ; N.J. Dower, 1. The intent to bar dower must be expressed in the deed : Mich. And so, when the husband's estate has been devested by process of law, she may re- lease her dower at any time thereafter, by joint or separate deed : Mass., Me., N.J., 111. Such joint deed releasing dower must have two attesting witnesses : Ala., Fla. A separate deed must be made in the presence of two witnesses ; but they need not attest the same if the deed is acknowledged : Ala. 426 OF THE RIGHTS OF THE WIDOW AND HUSBAND. If out of the State, a widow may release dower Ly joiut or separate deed, iu the satne manner as to land in the State ; but the conveyance must be acknowledged by them as other convey- ances executed beyond the State : Ala. 2235. Widows may convey or release the right of dower, whether of full age or not : Ala. 2236. But in Illinois, dower is not released by a conveyance made by order of court, unless so specified therein : 111. 41,45. See, generally, in Part IV. (5) In South Carolina, it is not necessary that the wife should join in the deed ; but she may relinquish her dower by special process, appearing before certain officers : S.C. 1796, Such relinquishment may be made in open court, or before any person authorized to take" the acknowledgment or proof of deeds in or out of the State : S.C. This acknowledgment must be made upon private and separate examination, and must state that she has i-enounced freely and voluntarily, without any compulsion, dread, or fear of any person whatsoever: S.C. 1797; Fla. It must be recorded within forty days : S.C. A certificate of such relinquishment and examination must be indorsed upon the deed, or a separate instrument to the same effect, and be duly recorded : S.C. 1798. The certificate must be under the hand and seal of the officer taking the acknowledg- ment : S.C. And it must be signed by the woman herself: S.C. Note. — " It is only necessary that she should join in the deed when it conveys lands to which the title came through her : Ga. § 3246. Forfeiture of Dower, (a) Adultery. In many States, a wife (or, iu Illinois, a husband) willingly leaving her husband (or wife), and dwelling in adul- tery, loses her (his) dower : KJ. Dower, 14; 0. 4192 ; Ind.* 2496 ; 111.^ 41,15 ; Del. 87,9; Va. 106,7; W.Va. 1882,86,7; KC.« 1844,2102; Ky. 52,4,3; Mo.*^ 2204; S.C. 1799. So, the husband, in a similar ease, loses curtesy : N.C. 1845. So, in two others, a wife " who is ravished, and consents to the ravisher : " N.J. JDotver, 15 ; Mo.<^ But not, if iu either case she (he) return and be reconciled and dwell with the hus- band (or wife) : N.J., 0., 111., Deb, Va., W.Va., N.C, Ky., S.C. In Georgia, this provision is expressed that dower is barred by adultery of the wife unpar- doned by the husband : Ga. 1764. (B) Abandonment. In a few states, a wife forfeits her dower who has abandoned the husband without his consent (1) and not by his fault : Ct. 18,11,1,4,1 ; 1885,110, 189 ; or (2) and without such cause as would entitle her to a divorce : W.Va. ; (3) if at death of the husband or wife, the wife or husband surviving had wilfully without just cause deserted and lived separate and apart from the deceased person for the space of one year prior thereto, the survivor is barred of all estate in the lands of the de- ceased : Minn. 4G,4. Unless the husband be reconciled and suffer her to dwell with him: W.Va. (C) Divorce. A widow is not endowed when, before the husband's death, there has been an absolute divorce (1) for her fault : Ct. 18,11,1,4,1 ; N.Y. 2,1,3,8 ; 111.'^-'* 41,14; Tenn.^ 3330 ; Mo. 2198 ; Ark. 2578 ; (2) for her adultery : Del.*^ 75,8 ; Ky. p. 954, § 1. So, in Illinois, of the husband, if divorced for his fault. So, when the marriage was void from the beginning : 111.^- <^ In other states, she is entitled to no dower in anv case of absolute divorce : Mass. 146,28 ; Ct. 1885,110,189; N.C. 1843 ; Ky. 52,4,14"; Mo. 2196. See also Art. 624. Except (1) when the divorce was for cause of adultery by the husband : Mass. 146,28 ; (2) when for cause of sentence of the husband to prison : Mass. ; (3) when, after a decree nisi of divorce, on the wife's libel, the husband dies before the decree is made absolute : Mass. ; (4) when she has been divorced without alimony, she being- the innocent party : Ct. Conversely, a husband or wife divorced for fault of the other, is entitled to dower, unless the marriage was void from the beginning : 111.''- "^ Notes. — » Provided the husband commenced proceedings for divorce during his lifetime : N.C. * Only if she be so living in adultery at the time of his death : Ind. " So, she is barred of jointure or settlement. <* So, of intestate share and estate given iu lieu of dower. BARRING DOWER. 427 § 3247. Forfeiture of Jointure, etc. (A) Generally, in many states, a wife for- feits her jointure, settlement, intestate share, or provisions of husband's will in lieu of dower, by the same acts, or in all cases where she would lose dower (see § 3246): N.Y. 2,1,3,15; N.J. Dower, 14,15; 111. 41,14; Del. 87,9; N.C. 1844; Ark. 2585 ; S.C. 1852. So, of the husband: N.C. 1845. The foregoing provisions in favor of the husband and the wife are subject to the quahfica- tion that, if the husband would be barred of his curtesy in the estate of his wife, or the widow oi dower in his estate, under any provision of hiw, neither shall have any part of the estate of the other unless tlie same be given by will : W.Va. 1882,94,12. So, the widow is barred of her distributive share in the husband's estate if she have separate estate equal to it and dower together : Ala. 2715. (b) If the husband separates from the wife and lives apart from her in adultery, and she dies without a reconciliation and cohabitation, he has no part of her per- sonal estate as distribution : N.C. 1482 ; Ky. 31,14. Nor has he curtesy : N.C. 1838, So, if he have abandoned her : N.C. ; or mahciously turned her out of doors : N.C. And in such case, the estate so settled or devised goes to the person entitled to it as on the widow's death : N.Y., Ark. (C) A widow is barred of her share of intestate personalty left by the husband (1) if she voluntarily leave him, and dwell in adultery : Va. 119,13; N.C. 1481 ; 1844; Ky. 31,13. (2) If she abandon him without sufficient cause: Ct. 1885,110,194. So, respec- tively, of a husband: Ct. ; N.C. 1845; Ky. .31,14. Unless the husband (or wife) was afterwards reconciled, and allowed her to live with him : Va., N.C, Ky. She has no such share in any land of which the husband has made a conveyance when she was not at the time, and never had been, a resident in the State : Kan. 33,8. § 3243. Failure of Jointure. In most of the states, if a widow be lawfully evicted (without fraud on her part) from the jointure, or the estate settled or de- vised in lieu of dower, she may still claim dower (or, except in Massachusetts, Indiana, Michigan, Wisconsin, Nebraska, Kentucky, Oregon, dower in so much of the residue of her husband's lands as will equal that from which she was evicted) : Mass. 124,15; Me. 103,11 ; Vt. 2225; E.I. 229,25 ; Ct. 1885,110,193 N.J. Dower, 11 ; 0. 4191 ; Ind. 2506; Mich. 5752 ; Wis. 2173; Neb. 1,23,19 Del. 87,4 ; Va. 106,6 ; W.Va. 1882,86,6,1 ; Ky. 52,4,7 ; Mo. 2202 ; Ore. 17,20 S.C. 1802. But in Maryland, it seems, only where she is evicted of an estate devised in lieu of dower : Md. 50,231 . But when a conveyance intended to be in lieu of dower fails to be a legal bar thereto, and the widow accordingly demands her dower, her interest in the estate so conveyed ceases : R.I. 229,24 ; N.J. Dower, 13 ; 0. 4190 ; Mo. 2203. § 3249. By Act of Husband. Generally, the wife can lose her dower by no act of the husband (compare § 3203). This would seem to result from the com- mon law as adopted in the United States. And in many states, there are special statutes. Thus, in four, that no act, deed, or conveyance executed or performed by the husband without the consent of his wife, evidenced by her joining in the deed or acknowledging it as required by law (Art. 650), shall prejudice her right of dower, or preclude her from its recovery, if otherwise entitled : N.Y. 2,1,3,16 ; Ind. 2499 ; 111. 41,16 ; Mo. 2197 ; Ark. 2586. In several, that no judgment or 428 OF THE RIGHTS OF THE WIDOW AND HUSBAND. decree conferred by or rendered against the husband, and no laches, default, covin, or crime on his part shall so prejudice her right to dower : N.Y. ; N.J. Bo ever, 5 ; 0. 4193 ; Ind. ; 111. ; Mo. ; Ark. § 3250. By Descent. In states where there is an intestate share given the widow in real estate in lieu of dower, she may not generally take both : N.H. 202,9; Mass. 124,3; Vt. 2219,2230; Pa. Intestates, 34; Dower, 2; S.C. 1797, 1852; Ga. 1764; Fla. 95,3. For other states, see §§ 3106,3110. Art. 326. Widow's "Waiver. § 3260. Note. For the effect of a devise or bequest in barring dower, or of the total omission of the widow's name iu a will, see also §§ 2840,2841,3244. Commonly, any will or any devise or bequest to the widow will deprive her of any right to the husband's estate, unless she waive such will as in this article provided. But if the will devise only real estate, or only personal estate, to the widow, she will be en- titled to her share in the personal estate or in the real estate, respectively, in addition to the devise or bequest, without waiver, unless the will expressly direct otherwise : Md. 50,230. The widow must waive both devises of real and of personal estate, or be barred to her right in either : Md. 50,229. § 3261. Separate Property. The right of a widow to her separate property shall in no case be affected by her waiving or failing to waive the husband's will, as hereafter provided : Col. 1051. So, of course, in nearly all the states. See Art. 642. But compare $ 3201. § 3262. Waiver of Will, etc." In many states, a widow may waive any pro- vision that may be made for her in the husband's will, or by jointure or settle- ment (as in Art. 324), and will then take in lieu thereof (A) her intestate share in both real and personal property (Art. 310) : KH. 202,7-9 ; 193,13 ; Mass." 127,18; Pa. Dower, 10 and 5 ; Wills, 13; Ind. 2491 ; 1885, Ex. 103 ; lo. 2452; Minn. 46,3; Kan.* 117,41; 33,17 ; Ga. 1764. (b) In others, she takes her intestate share in the personal property and dower: N.H. 202,15; 0.*'<^ 5963-4; 111.41,10; Md.^ 50,228; Va. 119,12 ; KG. 2109; Ky. 31,12 ; Ark. 2595 ; Ala. 2292 ; Fla. 95,2. Or she may, in lieu of dower and the intestate share of personalty, take one half the real estate and personal estate remaining after debts are paid, there being no children : 111. 41,12. But in New Hampshire, she may at her election waive dower and homestead, and take her intestate share in both real and personal property. See ^ 3264. (C) In others, she takes her dower in the real estate only : Me. 65,5 ; Vt. 2219 ; RI. 229,23 ; 182,11 ; Ct.^ 1885,110,192 ; KY. 2,1,3,13 ; N.J. Dower, 16 ; Neb. 1,23,17 ; Del. 87,5 ; Mo. 2200 ; S.C. 1801. But see also § 3241. (D) In two others, she takes her dower and one third of the personal estate only, in all cases (whether there are children or not) : Wis. 2172 ; W.Va. 1882,94,11. (E) In one other, she takes one half the estate, both real and personal, in all cases : Col. 2270. In Mississipi, she takes a child's part, or, if no children, half: Miss. 1172. (P) In Michigan, she takes dower and her intestate share of personalty up to $5,000 in value ; and of the residue half the share she would have had, if the husband had died intestate : Mich. 5824,57.50. (Gr) She, or the husband, takes one third of real and personal property for life : Ct.* 188.5,110,194. And if a special devise or bequest is made to the wife in lieu of any particular thing or in- terest to which she would be entitled in case of intestacy, the election by her to take such de- vise, etc., or other particular thing, etc., does not deprive her or any other person of the right to leave the testamentary disposition of property in all other respects unaffected and unimpaired, WIDOW'S WAIVER. 429 and to have the benefit of any other provisions therein, the same as if this act had not been passed : Mich. 5824. (H) She talies dower and one third part of the personalty in all cases, whether there are children or not, except that she takes a child's part, if more than two : Tenn. 3252. But in Massachusetts, if she would, under intestate distribution, become entitled to his personal estate to an amount exceeding $10,000, she shall receive, in addition to that amount, only the income during her life of the excess of her share of such estate above that amount : Mass. 127,18. In such case, the court may appoint a trustee of the personal estate during the life of the widow : Mass. 127,19. Notes. — " See § 3201. '' There is an anomaly. Instead of waiving the will, the widow must make election to take under it, if slie so desire : 0., Kan. "^ Except that it seems she takes only her intestate share in the personal projjerty as if the husband had died leaving children, although in fact he left no issue at his death. '* As to marriages made before April 20, 1877. * As to those made after that date. § 3263. Limitations. (For cases where the widow forfeits her right, see § 3247.) In Mississippi, if the widow have a separate property at the death of the husband equal in value to her lawful portion of his real and personal property, and he has made a will, slie cannot waive the will and take such intestate share ; but if her separate property be not so equal in value, she may waive the will, and have an estate equal to such deficiency made up to her, to be deter- mined by three appraisers, as follows : if her separate property equals two thirds of her in- testate shai-e, she shall have one third of her intestate share in real and personal property, respectively; if it equals one half, one half; if one third, two thirds; and if her separate property is not equal to one fifth, she may waive, and take her full intestate share : Miss. 1175. These same provisions apply to a husband waiving the wife's will: Miss. 1175. § 3264. Waiver of Dower, (a) In many states, the intestate share given in Art. 310 is in lieu of, and in satisfaction of, dower; and she has no dower in the real estate of her husband dying intestate ; see also §§ .3106,3110,3244. Except that such intestate share extends only to lands of which he died seized ; and she has dower, in addition, in lands aliened by him in his lifetime of which her right to dower was not duly (Art. 324) barred: Pa. (B) And in a few states, the widow is presumed to take her intestate share (§§ 3105, 3109) in the real estate ; but she may elect to take her dower (§ 3202) in lieu thereof: Mass. 124,3; Vt. 22.30,2219. (C) But in others, she is presumed to take dower (§ 3202) ; but may elect to take her intestate share (§§ 3105,3109) in lieu thereof : Mo. 2192,2195-6 ; Ark. 2599 ; S.C. 1852 ; Ga. 1764 ; Fla. 95,3 (such share being a child's part). § 3265. Method of "Waiver. The election of dower (or of the intestate estate in lieu of dower, § 3264) or waiver of the settlement or devise or bequest, made in lieu of dower, or the waiver of the will (see §§ 3243,3244,3260) must be made by the widow (1) within one year of the husband's death : N.Y. 2,1, .3,14 ; Wis. 2172 ; Neb. 1,23,18 ; Va.« 106,5 ; Ky." 52,4,6 ; Tenn. 3251 ; Ark." 2524; Ore. 17,19 ; (2) within eighteen months thereafter : Ai-k. 2598. (3) In other states, within one year of the probate of will or grant of administration on the husband's estate: R.I. 229,23; 182,11; Ind. ; 111. 41,11; Mich. 5825; Va.* 119,12; W.Va.* 1882,94,11; Ky.* 31,12; Mo. 2194,2200; Ga. 1764-5; Ala.^ 2293 ; Fla. 95,1. In others still, (4) within six months after such probate or administration granted: Mass. 124,3 and 9 ; 127,18; Me. 65,5 ; KJ. Dower, 16; Md. 50,228; N.C. 2108 ; Miss.<^ 1172. (5) Within eight months of probate, etc. : Vt. 2219; (6) within fifteen months thereof: Mo.<^ 2196 ; (7) sixty days thereafter : Ark.'' 2600 ; (8) within two months after the time limited for proving debts against the estate : Ct. 1885,110,192 ; (9) within one month after a citation issued any time after one year from the husband's death, on the application of any party inter- ested : Pa. Dower, f> ; Del. 87,6 ; (10) within one year after citation made by the judge of 430 OF THE RIGHTS OF THE WIDOW AND HUSBAND. probate forthwith upon the probate of the will : O.'' 5963; 1880, p. 308 ; (11) within thirty days thereafter: Kan. 117,42. But in some states, she has, in cases of jointure or settlement, (1) six months after notice of the husband's death: Mass. 124,9; Me. 65,4; (2) one year after: Ind. 2504 ; Mich. 5751 ; (3) and six months after notice of such jointure, etc. : Mass. ; (4) eight months after administration granted : Vt. 2219. And in others, in cases of provision by will, six months after notice of the probate of the husband's will : Me. 103,10 ; Io.« 2452 ; eight months after : Vt. But if the will be appealed from within such time limited, she has (1) twelve months after the appeal is disposed of : Ky. ; three months thereafter : 0. ; six mouths thereafter : Mass. 127,18. Notes. — "In the case of waiving a jointure. ^ In the case of waiving a will. '^ In the case of electing the intestate share, under § 3262. § 3266. Effect of "Waiver. Generally, if the widow do not elect to waive the will within a certain time she will be deemed to have accepted it. But note that, in some states, she must elect to take under the will, and will, in default of election, be sup- posed to have chosen her intestate share in real and personal property : 0. 5964 ; Ind. 2491; 10.2452; Kan. 117,42. In Georgia, it is provided that " an election by the widow to take a child's part of the realty, in ignorance of the condition of the estate, or of any fact material to her interest, shall not bar her right to dower, provided the rights of third parties acting bona fide upon her election shall not be prejudiced : " Ga. 1766. To enable a widow to act as her interest may require, the executor, etc., shall disclose to her the state and condition of the husband's estate within the period limited for waiver : Tenn. 3253. But in a few states, she need make no election (1) if the will make no provision for her; but wilh receive her dower or intestate share : Va. ; W.Va. ; Miss. 1173; nor (2) when all the husband's estate is taken for debts : Tenn. 3251. When the widow elects to take dower, the jointure or devise or settlement reverts to the heirs or representatives of the grantor or devisor : Ky. 52,4,6. § 3267. Process. In most States, the widow is deemed to have made election for the settlement or the provisions of the jointure, will, etc., unless within the time limited in § .3265 she either (1) transmit a written renunciation to the probate court: N.H. 193,13; Mass. 127,18; Me. 65,4-5; Vt.; E.I. 229,23; 182, 11 ; Ct. 1885,110,192 ; N.J. Dower, 16 ; Ind. 1885, Ex. 183 ; 111. 41,11 ; Mich. 5825 ; Wis. 2172 ; Md. 50,228 ; Va. 119,12 ; W.Va. 1882,94,11 ; Ky. 52,4,6 ; 31,12 ; Mo. 2194,2196,2200; Ark. 2599; Ala. 2293; Miss. 1172; Fla. 95,1. Which must be duly acknowledged or proved like a deed : Ind. ; Va. ; W.Va. ; Ky. ; Mo. ; Ark. 2600. It must be recorded in the probate court : N.H. 1883,34,1 ; Ind. ; Mo. : and also in the registry of deeds : N.H. Or (2) she must enter on or commence proceedings for her dower lands : N.Y. 2,1,3,14 ; Mich.« 5751 ; Neb. 1,73,18 ; Ark. 2584 ; Ore. Or (3) she must appear in the probate court in person (or by attorney, in Delaware and North Carolina), and make election : Pa. ; 0.5964 ; Kan. 117,42 ; Del. 87,6-8 ; Va. ; N.C.'' 2108 ; (4) no way is specified : Vt. 2219 ; (5) she must make a deed of the jointure estate to the heirs, as required in § 3244 : Ark. 2597. Except when non-resident or ill, when a commission issues to take her election: 0.5965; Kan. 117,43. The court (or commissioner) must explain to her the will, her rights under it, and the law in case of her refusal to take under it : 0., Kan. If she is insane, the court makes election for her according to her interest : 0. 5966 ; Kan. 117,44. Notes. — " In the case of jointure or settlement in lieu of dower. ^ The attorney must be authorized in a writing, executed by the widow, attested by one witness, and duly proved and recorded : N.C. ASSIGXilENT OF DOWER. 431 Art. 327. Assignment of Dower. § 3270. Note. For the Widow's Quarantine, or the allowance pending settlement of dower, see also iu the Probate Code, Allowances to Widoiv and Children. § 3271. By the Heir. Dower (or the estate in lieu of dower) is, in many states, to be assigned (a) by the heir, remainder-man, reversioner, or devisee en- titled to the land subject to dower : N.H. 2-46,1-2 ; Mass. 174,1-2 ; Me. 103, 15-17 ; Vt. 2220 ; E.I. 229,4 ; N.J. Dower, 3 ; 0."' * 5707 ; 1884, p. 198 ; 111. 41,18-19; N.C.'^2110; Mo. 2206; Ark. 2603; Fla. 95,10; or by the person having the next estate of freehold in the land : E.I., 111., Fla. ; or by the tenant in possession : R.I. 229,5. The heir or other person must assign it (1) within forty days of the huslband's death : N.J. ; (2) as soon as possible: 111., Ark., Fla.; (3) within thirty days thereafter (or after her de- mand, in New Hampshire, Massachusetts, Maine, and Rhode Island) : N.H. ; Mass. ; Me. ; K.I. 229,7. (4) But the widow may apply at any time not before twenty days from the hus- band's death : lo. 2444; Kan. 33,10 ; (5) within one year after such death, or three months after demand : Ark. ; (6) withiu two years after such death : Mo. ; (7) within two months thereafter : Fla. ; (8) after the expiration of three months from the husband's death : Ga. 4042. Limitation. The widow must sue for or claim dower (1) within five years after the husband's death : Kan. ; (2) within ten years thereafter : lo. ; (3) within twenty years : Mass. 124,14 ; N.Y.* 2,1,3,18 ; Civ. C. 1596 ; (4) within seven years : Ga. 1764 ; (5) within three years when the rights of alienees, etc., of the husband, are involved: Ala. 2251 ; (6) within one year after demand: Mass.; but a new demand may be made at any time thereafter : Mass. See Prescription, in Part IV. But if, at any time before the claim for dower is barred as above, the owner of the subject land, in possession, have recognized it in a writing under seal, acknowledged like a deed of land, or it have been so recognized by judgment or decree of court, the time previous to such deed, etc., is not counted: N.Y. 1882,277. Notes. — « When the land is free of mortgages and judgment liens. ^ Such assignment must be confirmed by the coui-t. '^ If the personal property be sufficient to pay debts and charges of adminis- tration. '^ Unless under legal disabiUty ; see Part IV., Liviitcdions. § 3272. By the Probate Court. In many states, dower may also be assigned by (1) the probate court in which the husband's estate is being settled : N.H." 202,2; Mass. 124,10; 174,1; Me.* 65,1 ; Vt. 2220; E.I. 229,17; Ct. 18,11,1,4,2; 1885,110,190; N.J.« Dower, 17 ; Pa. Dower, 11 ; Mich.'' 5740 ; Wis." * 3869 ; Neb.* 1,23,8 ; Md. 47,62 ; Del." 85,7 and 16 ; Va. 106,9 ; Ky.'' Civ. C. 499 ; Tenn. 3255 ; Ark. 2606 ; Ore."> * 17,8 ; S.C.'^ 2283 ; Ala.<^' '^ 2239 ; Fla. 95,7- Also (2) in a few others, by the superior court: Pa. 1885,183 ; W.Va. 1882,86,9 ; N.C. 2111 ; Ky. ;<= Tenn.; Mo.<^ 2208-9; Fla.; (3) by the chancery court: Tenn., Ala. \'= (4) by any court of record : 111.'' 41,20. Notes. — " Only in land of which the husband dud seized. * Only when the widow's right to dower is not disputed. "^ By the court of the county where the land lies, in the noted states. ^ Only when it can fairly be assigned by metes and bounds ; for other cases, see below. § 3273. Process. Dower may so be assigned by the probate court on petition (1) • of the widow (for citations, see also § 3272) : R.I. ; Ct. ; N.J. ; Pa. Decedents' Estates, 136 ; Mich. ; Wis. ; Neb. ; Del. ; W.Va. ; Ky. ; Ark. ; Ore. ; S.C. ; Ala. ; Fla. ; (2) of other persons interested : Mich., Wis., Neb., Del., Ky., Ore. ; (3) of the heirs, devisees, or persons holding the fee of the land subject to dower : R.I. 1882,315,1 ; Ct. ; N.J. ; Va. ; W.Va. ; Ala. ; (4) of the executor or administrator : Ala. ; (5) of the creditors of the widow : Mo. 2218 ; (G) of the lineal descendants of the deceased : Pa. 432 OF THE RIGHTS OF THE WIDOW AND HUSBAND. Notice, by service or publication, is generally required ; and guardians must be ap- pointed for minor heirs. § 3274. By Suit. If the heir does not satisfactorily assign dower as required in § 3271 (N.H., Mass., Me., E.I., 111., X.C, Ark., Fla.), or if the probate court fail to do so as required by §§ 3272-3, or in all cases (Pa.), the widow may bring suit for her dower at law or equity :« N.H. 246,2 ; Mass. 174,1-2 ; Me. 103,15-16; RI. 229,7 ; N.J. Dower, 3 ; Pa. Doiuer, 9 ; 0. 5708 ; 111.* 41,19 ; Wis. 3094 ; Neb. 1,23,18 ; Del 87,10; Va. 106,9; W.Va. 1882,86,9-10 : N.C. 2111 ; Ky. Civ. C. 499 ; Mo. 2206 ; Ga. 4041 ; Ala. 2248 ; Fla. 95,12. Notes. — " For the form of such suit, see iu Part IV. * Or the husband, where the husband has dower. § 3275. Method, (a) In all cases of assignment of dower by a court (§§ 3272- 3274), the actual division or computation is made by three (or live, in Delaware, Georgia, Alabama, and Florida) disinterested commissioners appointed by the court : N.H. 246,6 ; Mass. 174,5 ; Me. 65,2 ; Vt. 2220 ; R.I. 229,11 and 19 ; 1882,315,1 ; Ct. 1885,110,190 ; N.Y. Civ. C. 1607 ; N.J. Dmuer, 17 ; Pa. Decedents' Estates, 141 ; O. 5712 ; III 41,34 ; Mich. 5741 ; Wis. 3870 and 3094 ; lo. 2443 ; Kan. 33,9 ; Neb. 1,23,8 ; Md. 47,62 ; Del 85,9 ; Va. 106,9 ; W.Va. 1882,86,9 ; N.C. 2113 ; Ky. Civ. C. 499 ; Tenn. 3259 ; Mo. 2211 and 2219 ; Ark. 2612 ; Ore. 17,9 ; S.C. 2285 ; Ga. 4041 ; Ala. 2244 ; Fla. 95,7. Subject, however, to the court's approval and confirmation : Mass. 174,7 ; Vt. 2222 ; RJ.; Ct. ; N.J. Dower, 19 ; 0. 5713 ; 111. 41,38 ; Mich. 5742 ; Wis. ; lo. 2448 ; Kan. 33,14; Neb. 1,23,9; Md. ; Del. 85,13; Va. ; W.Va. ; Ky. ; Tenn. 3265 ; Mo. 2213 ; Ark. 2613 ; Ore. 17,10 ; S.C; Ga. 4047; Ala. 2245; Fla. 95,13. It is returned to the court, and, if confirmed, is recorded : Vt. ; N.J. ; Wis. ; Neb. ; Ky. ; Mo. ; Ark. 2614; Ore. ; S.C. ; Ala. § 3276. Division by Bounds or Otherwise. In all cases, dower is assigned by metes and bounds : N.H. 202,5 ; Mass. 124,11 ; Me. 65,2 ; 103,22; Vt. 2220 ; RI. 229,18 and 12 ; N.Y. Civ. C. 1609 ; N.J. Dower, 19 ; Pa. Decedents Estates, 141 ; 0. 5713-4 ; 111. 41,35 ; Mich. 5741 ; Wis. 3870 ; lo. 2446 ; Kan. 33,12 ; Neb. 1,23,8 ; Del. 85,9 ; 81,14; Mo. 2212 ; Ark. 2612 ; Ore. 17,9 ; S.C. 2285 ; Ga. 4045 ; Ala. 2239 ; Fla. 95,7. But when this cannot be fairly or conveniently done, without injury, the widow may have dower assigned in a special manner ; as, in many, (1) one third of the rents and profits : N.H. 202,5 ; Mass. 174,12 ; Me. 65,3 ; 103,3 and 23 ; Vt. 2223 ; E.I. 229,2 ; 0. 5714 ; 111. 41,39 ; Mich. 5743 ; Wis. 3871 ; Neb. 1,23,10 ; Ark. 2615; Ore. 17,11. (2) Or as a money allowance, one third of the yearly value or a fixed rental : R.I. 1882,315,4 ; N.Y. Civ. C. 1613 ; 111. ; Mo. 2215-6 ; (3) or the estate may be sold and her share in the proceeds paid the widow : N.Y. Civ. C. 1619 ; lo. 2451 ; Del. 85,15; Ga. 1770. (4) The legal interest on such widow's share remains charged on the land, and is paid to Tier annually : Pa. Decedents' Estates, 158. When, however, the widow has dower in an undivided intere.st, the husband's interest must be severed before her dower can be assigned : Vt. 2221. So, generally; see Part IV., Partition. When the estate is thus sold, the widow may recover the interest from the purchaser on her third (or half, If no children) of the proceeds : Del. 85,23. But the purchaser may at his option pay the widow's share into court, and be relieved of such liability : Del. 85,26. The estate will not, however, be sold as above if any person interested give bond for the ap- praised value of the widow's share, to be paid within one year and ten per cent interest : lo. 2451. ASSIGNMENT OF DOWER. 433 (5) So, in Alabama, whon the land has been aliened by the husband, and from improvements made by the alienee, or for any other cause an assignment by metes and bounds would be un- just, the widow is dowable of the value of the land at the time of alienation, the interest on one third part thereof to be paid to her annually during her life and secured if necessary by a lien on the land : Ala. 2249. Unless the parties agree to a compensation in gross, which the court must give effect to : Ala. (6) So, in Michigan, in such case, the court orders a gross sum to her, or may assign to her as tenant in common a just share of the rents and profits for life : Mich. 5768. Where dower in any land may be claimed by two or more widows, the one whose husband was first seized therein is first entitled thereto ; and in all cases where dower in any land shall have been assigned or it shall appear that the owner or person having an interest therein shall have made full satisfaction to the person having such prior right, the laud is not subject to any other claim for dower during such latter person's lifetime : Mich. 5769. (7) Or she may, in a few states, elect (a) a sum absolute to be paid her in lieu of dower, to be estimated by commissioners: N.Y. Civ. C. 1617-8; Ga. 1771; (§) her legal share of the proceeds ; and in such case the estate may be sold, as above : Del. 85,17 ; (y) a sum estimated according to § 3278 : W.Va. 1882,86,17 ; S.C. In Georgia, the widow may, with the assent of the executor or administrator, elect to take a life estate in one third part of the proceeds of a sale of the land, in lieu of dower: Ga. 1770. § 3277. Selection of Land. (A) In four states it is expressed that the widow is to have dower in one third of the lauds (1) according to valuation: N.C. 2103 ; S.C. 2288 ; Ga. 1763. Such valuation is to be as of the time of the husband's death, with interest : S.C. 1883, 305. (B) In many, the usual place of residence with outhouses, etc., is, or may be, if the widow desire, included in the land assigned as dower: 111." 41,37 ; lo. 2441; N.C. ; Tenn. 3247 ; Mo. 2209 ; Ark. 2.589 ; Ga."-" 1763 ; Ala.'^ 2246 ; Fla.-^ 95,1. In two, if the whole of such residence and appurtenances cannot be assigned without injustice to the children or heirs, such part thereof as the court deem sufficient to affoi'd her a decent resi- dence, due regard being had to her condition and past manner of life, shall be assigned to her : Tenn. 3248 ; Fla. The commissioners shall, at the request of the widow, lay off dower in any part of the lands of the deceased, whether the same include the dwelling-house or not, provided it can be done without essential injury to the estate : Ark. 2590. Permanent improvements made since the husband's death, or after his alienation, must not be assigned to the widow, if possible ; or, if assigned, a proportionate deduction must be made from her dower share : N.Y. Civ. C. 1609. In several states, where the widow has a right of dower in several tracts of land, her entire dower may be assigned out of one tract by her selected : R.I. 229,3 ; 1882,315,2 ; N.Y. Civ. C. 1620 ; 111. 41,36 ; N.C. ; Ky. 52,4,11 ; Mo. 2209 ; Ga. 1767. So, in Tennessee, the commissioners need not assign one third of such tract of land, but may assign in any such manner as will give her one third in value of the whole estate : Tenn. 3249. Notes. — « Unless it is in a town or city : Ga. * It seems that she is to hold such house in dowor without reference to its value {i. e., whether it is more than one third of the dowable estate or not). ' If she do not so take the dwelling-house, sho loses her homestead therein. '^ When the estate is solvent, and it can be done without prejudice. § 3278. Damages for "Withholding Dower. (a) When a widow is entitled to dower in the lands of whicli her husband died seized, site may (1) continue to occupy the same with her children and the other heirs so long- as tliey do not object, without havinpr dower assigned : " Mass. 124,13; Vt. 2224; Mich. 5744; Wis. 3872 ; Neb. 1,23,11 ; Ore. 17,12; or (2) she is to receive one third of tlie rents, issues, and profits of the same (compare also C) : Mass. ; Mich. ; Wis. ; Va. 28 434 OF THE RIGHTS OF THE WIDOW AND HUSBAND. 106,8 ; W.Va. 1882,86,8 ; Ore. ; or (3) she may remain in the mansion-house free of rent until dower is assigned (provided she bring suit within a year of the grant of administration : E.I.) : R.I. 229,6 ; N.J. Dotoer, 2 ; 0.* 4188 ; Va. ; W.Va. ; Ky. 52,4,8 ; Mo. 2205 ; Ark. 2588 ; Ga. 1768 ; Ala. 2238 ; Fla. 95,9 ; so, (B) when- ever, in any action brought for the purpose, a widow shall recover her dower in land of which her husband shall have died seized, she shall be entitled also to recover damages for the withholding of such dower : N.H. 146,4 ; Mass. 174,4 ; Me. 103,19; R.I. 229,11 ; N.Y. 2,1,3,19 ; Civ. C. 1600 ; N.J. Dower, 3 ; 111. 41,41 ; Mich. 5756; Wis. 2175 ; Neb. 1,23,23 ; Del. 87,13 ; Va. 106,11 ; W.Va. 1882,86,10; Mo. 2206 ; Ore. 17,24. Such damages are one third part of the rents and profits of the land in which she recovers dower, as in C : N.Y. 2,1,4,20 ; N.J. ; Mich. 5757 ; Wis. 2176 ; Neb. 1,23,24. So, in others, (C) the wadow is entitled to receive one undivided net third part of the rents and profits of the estate of which her husband died seized until her dower is assigned : N.H 202,13 (see below) ; Mass. 174,10-11 ; Me. 103,4 ; Vt. 2224 ; 0. 5715 ; Ky. 52,4,8 ; Mo. 256 ; Ark. 66 ; Ore. 17,25. These damages are estimated, in a suit against heirs, from the time of the husband's death ; as against other persons {i. e., in land of which the husband did not die seized), from the time of the widow's demand of dower upon them: Mass.; N.Y. Civ. C. 1601 ; N.J. ; Mich. ; Wis. ; Neb. ; Va. ; W.Va. ; Ky. 52,4,9 ; Mo. ; Ore. ; as against all persons, only from the date of the action : 0. ; as against any defendant, only for the time during which he held possession of the dower estate : Mass. 174,40; Me. 103,20. Such damages cannot be given (1) for more than six years in the whole : N.Y., Wis. ; (2) not for more than five years: Va., W.Va., Ky. When a widow shall recover her dower in any lands alienated by the heir of her husband, she shall be entitled to recover of such heir in an action her damages for withholding such dower from the time of the death of her husband to the time of the alienation by the heir, not exceeding six years in all ; and the amount which she shall be entitled to recover from such heir shall be deducted from the amount she would otherwise be entitled to recover from such grantee ; and any amount recovered as dam- ages from such grantee shall be deducted from the amount she would otherwise be entitled to recover of such heir : N.Y. 2,1,-3,22 ; Civ. C. 1603 ; Mich. 5759 ; Wis. 2177 ; Neb. 1,23,26; Ore. 17,27. So, if she recover her dower and damages against the tenant, she may then bring an action against a prior tenant for the rents and profits for the time during which he held the premises after her demand : Mass. 174,11. In making the appraisement of such dower estate, rents, etc., all permanent or valu- able improvements made on the estate after the husband of such widow ceased to own it shall be excluded : N.Y. 2,1,4,21 ; 0. 5716 ; Mich. 5758 ; Wis. 2176 ; Neb. 1,23,25 ; Ky. 52,4,9; Mo.; Ore. 17,26. But in two others, she takes her third in the estate as it is when the recovery is had : Va., W.Va. But the tenant under deed from the husband has relief in equity, so that he need pay only lawful interest on one third of the land's value at the time of alienation : Va. 106,12. So, the tenant so claiming may pay the widow such interest, or in lieu thereof a gross sura according to the value of an annuity of six per cent on the principal sum during the probable life of the dovvress : W.Va. 1882,80,12 and 17. No damages are allowed in cases of assign- ment by the probate court : R.I. 229,20. So, probably, in all states. Notes. — " Compare the Widow's Quarantine provisions, Probate Code. * But only for one year after the husband's death. § 3279. Lands Aliened. Dower in land aliened by the husband is to be deter- mined, as against the purchaser (or the husband's devisee : Mich., Kj'.), according to the value of the land (1) at the time of alienation (with interest from the husband's death, CURTESY. 435 in S.C.) : Mich. 5739 ; Wis. 2166 ; Neb. 1,23,7 ; Ky. 52,4,9 ; Ore. 17,7 ; S.C. 2289 ; (2) at the time she recovers dower : Mo. 2206. Generally, if the heir ahen land, the widow still has dower in such land as against any person : Ark. 2617 § 3280. Fraud. If, in several states, during the minority of an heir, dower be assigned to a widow not entitled thereto, or she recover the same by the default, fraud, or collusion of the guardiau, such heir has an action against the widow to recover such lands on coming of age : N.Y. 2,1,3,24 ; Civ. C. 1605 ; N.J. Botver, 6; 0. 5717 ; Mich. 5761 ; Wis. 2179; Neb. 1,23,28 ; Va. 106,13 ; W.Va. 1882,86,13 ; Mo. 2220 ; Ore. 17,29. So, in others, an heir is not bound by any collusive or ex-parte assignment of dower except so far as the widow shows herself to have been justly entitled thereto : N.J. Dower, 7 ; Ky. 52,4,10. Conversely, any conveyance made to children or others with intent to defeat the widow of her dower is void, and such widow is entitled to her dower in land so cunveyed : Tenn. 3254. The widow shall not be barred of dower by reason of any judgment rendered by default or collusion against the husband, if she would be entitled to dower had there been no such judgment : Va. ; W.Va. ; Ky. 52,4,10 ; so, it seems, in New Jersey. § 3281. Insolvent Estates. When the husband died insolvent, the widow and two thirds of the creditors may, in Vermont, agree upon a portion of the real estate, to be assigned to her for life, or of the personal estate, forever, in heu of dower : Vt. 2226. See also in Probate Code. § 3282. Further Claim. Generally, an assignment of dower, once made and accepted by the widow, is a bar to her further claim of dower : N.Y. 2,1,3,23 ; Civ. C. 1604 ; Mich. 5760 ; Wis. 2178 ; Kan. 33,15 ; Neb. 1,23,27 ; Ark. 2614, 2604; Ore. 17,28. Unless she shall have been lawfully evicted of the lands so assigned : Mich., Wis., Neb., Ore. Art. 330. Curtesy. § 3300. Note. The same general remarks that were made of the law of Dower (§ 3200) are applicable to Curtesi/, mutatis mutandis. So, see § 3202, B. § 3301. Amount. (A) In a few states, the estate by curtesy is expressly preserved as at common law ; that is, the husband, on the death of the wife, has a life estate, free from all her debts, in any land of which she was seized of an estate of inheritance at any time during coverture, if he had lawful issue by her born alive and capable of in- heriting : N.H. 202,14; Mass. 124,1 ; Vt. 2229; R.I. 187,8; Del. 85,1 ; N.C. 1838; Ariz. 1474. So, in other states, where the laws are silent, or imply as much; see Ct. 18,7,15; N.Y. 2,2,20; N.J. Descent, 6; Mo. 3961 ; Ore. M. L. 10,13. In Tennessee, Arkansas, and Alabama the laws are silent. (B) In others, he holds the land for life, whether there are issue born or not : 0. 4176; Mich. 5770; Neb. 1,23,29; W.Va. 1882,86,15; Ore. 17,30; Ala. 2714. (C) In one, the husband has curtesy even when there were no issue bnrn ; if issue, being bom, would have been capable of inheriting : Pa. Intestates, 4. (D) In Maine, the husband has no curtesy in lands acquired since 1844 : Me. 10-3,15. C^) In Kentucky, curtesy is as at common law, except that it only extends to land of which the wife died seized, and is subject to all her debts : Ky. 52,4,1. (F) Curtesy is turned into dower ; that is, the husband on the death of the wife has an estate precisely similar to that which the wife takes on the death of the husband : in. 41,1 ; Kan. 33,28. Compare also §§ 3105,3109. 436 OF THE RIGHTS OF THE WIDOW AND HUSBAND. (G) In many states, curtesy is abolished : Me. 103,15 (since 1844) ; Ind. 2482 ; 111. 41,1; lo. 2440; Minn. 1875,40,5; Kan. 33,28; Cal. 5173; Nev. 157; Col. 1039 ; Wash. 3304 ; Dak. Civ. C. 83 and 779 ; Ida. 1874-5, p. 636,10 ; Wy. 42,1 ; S.C. 1883,215 ; Ga. 2259 ; Miss. 1170 ; Ariz. 1976. But iu some few of these states, the husband has " dower; " see § 3202. § 3302. Extent. (A) In several, the husband has curtesy in lands held by equitable title (this would seem to be the case in all states, where not expressly enacted to the contrary, by the common law) : Md. 45,2 ; Va. 112,17 ; W.Va. 82,17 ; N.C. But uot to the prejudice of any claim for the purchase-money of such land or other lien on the same : Md. So, in a few states, not as against the mortgagee, where the wife at the time of purchase mortgaged the land to secure the purchase-money : Mass. 124,2 ; Minn. 69,2 ; N.M. 1088. (B) In a few, if the wife at her death leave issue by a former husband, the widower has no curtesy in such of her land as descends to such issue : Vt. 2229 ; 0. ; Mich. ; Wis. ; Neb. Unless such estate came to the wife by deed or gift from such surviving husband or his ancestors : 0. § 3303. Election. (A) In the two states where curtesy is made to resemble dower the laws and rules affecting it are, generally, the same ; see Art. 320 : Me. 65,6 ; 103,15; 111. 41,1. So, in Illinois, a husband is barred of his curtesy by jointure or settlement made as in ^ 3241-2, and assented to by him : 111. 41,8. (B) And iu particular, a husband has his election of curtesy or the estate devised by his wife to him, but cannot claim both : Me. ; 111. 41,10 ; N.C. 1839. § 3304. Bar. And in other states, he may be haired of curtesy or his intestate share by settlement or juinture, as the wife may be barred of dower (§§ 3241-3) : N.H. 202,17. So, if any estate, real or personal, be delivered by the wife to the husband in lieu of curtesy, and he accept the same, he is ban-ed of curtesy in the residue : W.Va. 1882,86,16. See also § 3213. So, in one f)ther, he is barred by ante-nuptial settlement of real or personal property, pro- vided he assent in writing, as iu H 3241-2 : Ind." 2.501. So, every devise or bequest to the husband is holden to be in lieu of curtesy unless the con- trary appear : N.H. 202,18. And the husband cannot clahn both curtesy and such devise or bequest : N.H. ]s;oTE. — « i. e., he is barred of his intestate share ; see above, and § 3202, B. § 3305. "Waiver of the Will by Husband, (a) In many states, the husband may waive the wife's will and take the share to which he would have been en- titled, both of realty and personalty, had she died intestate : N.H. 202,15-16 ; 111. 41,10-1 : Minn. 40,3 ; Kan. 33,28 ; Miss." 1172. And in many other states, he will take curtesy, etc. ; see § 6460. So, he will in such case take dower in the realty and his intestate share in the personalty : 111. 41,10. (B) In other states, it seems a husband is entitled to curtesy whether he waive the will or not (see also $ 6460) : Vt. 2229. In one other, he takes the same share that slie would take in his real and personal estate ; or he may in lieu thereof take his curtesy in the real estate only : Pa. Marriage, 23. But not of property held in settlement to the wife's sole or separate use : Pa. He takes the share he would have taken had she died intestate and without children: W.Va. 1882,94,11. He takes a share similar to that of the widow (^ 3262) : Ct.'' 1885,110,194. ;f;roTEs. " But such share may not exceed one half part, whether there are issue or not. ^ See § 3262, note «. DESCENT OF COMMUNITY PROPERTY. 437 § 3306. Waiver of Curtesy. In Vermont, the liusband may elect to take his in- testate share (§ 3105, etc.) in lieu of curtesy : Vt. 2229. See also § 3105, note *. § 3307. Forfeiture, etc." In Maine, the husband is not entitled to dower when the wife died insolvent. In one state, a husband loses his curtesy in case of absolute divorce for his fault : N.C. Divorce, 14. If he separate from his wife and live in adultery he loses his curtesy ; provided the wife have commenced proceedings for divorce during her lifetime: N.C. A husband who has left his wife and is living at her death in adultery, takes no part of her estate : Ind." 2497. So, any husband who has left his wife except for cause of divorce is barred of curtesy, unless she be afterwards reconciled: W.Va. 1882,86,16. So, if he abandon her and fail to make suitable provision for her and his children by her : Pa. Marriage, 30 ; Ind. 2498. A divorce bars all claim to curtesy: Ky. 52,4,14. Note. — « See § 3304, note °. See also § 3246. § 3308. Waste. A tenant by curtesy is liable for waste like any other life tenant (see § 1332): Mass. 179,4 ; N.Y. Civ. C. 1651 ; N.J. Waste, 3; 0. 4177 ; Mich. 7940 ; Wis. 3171 ; Del. 88,1. He forfeits the estate, and is liable in actual damages, both for actual and permissive waste: 0. 4177. § 3309. Eviction. In Indiana, when a man is lawfully evicted of lands or deprived of other property conveyed to him in the nature of a jointure, his right to the estate iu lieu of curtesy is revived : Ind. 2506. Art. 340. Descent of Community Property. See Art. 643. § 3400. Louisiana Law. In all cases, when either husband or wife shall die, leaving no ascendants or descendants, and without having disposed by last will and testament of his or her share in the community property, such share shall be held by the survivor in usufruct during his or her natural life. In all cases, when the predeceased husband or wife shall have left issue of the marriage with the survivor, and shall not have disposed by last will and testament of his or her share in the community property, the survivor shall hold a usufruct, during his or her natural life, so much of the share of the deceased in such community property as may be inherited by such issue. This usufruct shall cease, however, whenever the survivor shall enter into a second marriage : La. 915-6 ; D. 1710-1. § 3401. On the Death of the Wife, all such property (A) belongs to the husband without administration : Cal. 6401 ; Nev. 160 ; Ida. 1874-5, p. 636,11 ; 1879, p. 50,1 ; Mon. Prob, C 550. Except, (1) such portion thereof as may have been set apart for her by judicial deci'ce for her support and maintenance is subject to her testamentary dis- position, and, in the absence of such disposition, goes to her descendants or heirs, exclu- sive of the husband : Cal., Mon. (B) It goes in the same manner as in the case of the death of the husband (^ 3402) : Wash. (C) It goes to the husband if there are no children (i. e., the acquest [gananciales] pro})- erty; see $ 3404) : N.M. 1422. Except, if the husband has abandoned the wife and lived separate and apart from her, one half of the community property, subject to the payment of its equal share of debts chargeable to the egtate owned in community, is at her testamentary disposition in the same manner as her separate property ; and in the absence of such disposition it goes to her descendants equally, pe7' stirpes, unless they are in the same degree of kin, when it goes per capita ; and if none, to her heirs, exclusive of the husband : JSTev. 160 ; Ida. 1874-5, p. 636,11 ; 1879, p. 50,1. Note. — «» Without such cause as would have entitled him to a divorce. 438 OF THE RIGHTS OF THE WIDOW AND HUSBAND. § 3402. Upon the Death of the Husband, half the community property goes to the wife surviving ; the other half is subject to the testamentary disposition of the hus- band, and in the absence of such disposition, goes to his descendants; and if none, (A) it is distributed hke the separate property : Cal. 6402 ; Ida. ; Mon. Prob. C. 551. (B) It goes all to the wife surviving, without administration: Nev. 161 ; 1881,69 ; 1883,11 ; Wash. 2412. (C) It goes to the wife if there are no children, as in $ 3401 : N.M. 1422. The entire community property is equally subject, in such case, to the debts of such deceased husband, and to administration expenses and the ftimily allowance : Cal., Nev., Wash., Ida., Mon. If the husband or wife be dead, it goes to the father of such husband, etc., deceased; if none, to the mother, there being no kin by blood ; if none, to the brothers and sisters of such husband, etc., and their issue ; if none, it escheats : Uta. 1884,44,2,3. § 3403. In all cases, community property goes one half to the surviving husband or wife, subject to the community debts ; the other half to the legitimate issue of the body of the person deceased ; if no issue, all to surviving husband or wife as above : Tex. 1653; Wash. 2410-1,3303; Ariz. 1977. Subject to all debts against it :Tex. 1654 ; Wash. ; Ariz. If the decedent was a widow or widower, and leaves no kindred, it goes to the father, mother, or brothers and sisters of the deceased spouse of the intestate : Cal. 6386, Amt. § 3404. Ne-w Mexico. After the estate of a testator or intestate is duly inventoried, the following deductions are made : (1) the private property of the wife as her dowry, or of any other denomination ; provided it be her property and held by the husband, in which case it shall have precedence over all other creditors, as an implied privileged mortgage ; (2) the private property of the husband possessed before marriage or acquired by him as a bequest, or by any donation or legacy ; (3) the common debts of the marriage ; but the private debts of the husband shall be paid from his private property, and the private debts of the wife from hers. (4) After making the above deductions, the balance remaining of the estate is termed the acquest property ; and the same is said of the property of the wife, making the corresponding deductions, if she be the person deceased : N.M. 1410,1411. This acquest property descends one half to the widow or husband, the remainder to the [childreu] heirs or devisees of the husband or wadow deceased : N.M. 1411. The following deductions from such acquest property are further provided : (1) one fifth, to pay funeral expenses and all legacies, vi'hen the testator left issue (i. e., and no more) ; (2) one third for such purpose when there are no descendants ; (3) both a fifth and a third, if there is sufficient, and there is any just reason expressed by the testator for so doiug in reference to his descendants : N.M. 1412. After having deducted one fifth, it shall follow and be established that a last deduction be made of one fourth the private property of the husband in favor of the wife ; provided said property amount to $5,000 and there are no descendants, and although it may exceed this sum in the absence y the owner. Chickens, turkeys, geese, ducks, and other domestic animals, shall not be considered wild animals, though there are species of these animals which exist in a state of natural liberty. Therefore, if the geese or fowls of anybody should take flight, they are nevertheless reckoned to belong to him, in whatever place they are found, although he shall have lost TRADE-MARKS, DEEDS, NAMES, ETC. 445 sight of them ; and whoever detains such animals with the inteotion to make them his, is understood to commit a theft. Those who discover or who find precious stones, pearls, and other things of that kind on the sea-shore or other places where it is lawful to search for and take them, become masters of them. He who finds a thing which is abandoned, that is, which its owner has left with the inten- tion not to keep it any longer, becomes master of it in the same manner as if it had never belonged to anybody. If he who has found a movable thing that was lost, having caused it to be published in newspapers, and having done all that was possible to find out the true owner, cannot learn who he is, he remains master of it till he who was the proper owner appears and proves his right ; but if it be not claimed within ten years, the thing becomes his property, and he may dispose of it at his will. Although a treasure be not of the number of the things which are lost or abandoned, or which never belonged to anybody, yet he who finds it on his own land, or on land belonging to nobody, acquires the entire ownership of it ; and should such treasure be found on the hind of another, one half of it shall belong to the finder and the other hair to the owner of the soil. A treasure is a thing hidden or buried in the earth, on which no one can prove his property, and which is discovered by chance. We must not reckon in the number of things abandoned those which one has lost, nor those which are thrown into the sea in peril of shipwreck to save the vessel, nor those which are lost in a shipwreck. For although the owners of such things lose pt)Ssession of them, yet they retain the ownership and the right to recover them. Therefore, those who find things of this kind cannot make themselves masters of them, but are obliged to restore them to their lawful owners, in the manner provided for by the special laws made on that subject. The manner of acquiring property captured from an enemy in time of war is regulated by the law of nations ; and with respect to prizes made at sea, by laws which are general through- out the Union : La. 3412-3425. Art. 406. Trade-marks, Deeds, Names, etc. § 4060. Property in. Trade-marks, letters, and names cannot, in several states, be used without the consent of the person first using them : Mass. 76,1 ; Me. 126,8 ; Uta. 2016-7 ; and in most states, this is made a penal offence ; see in Part V. If so used knowingly by any person, or if the mark is placed on articles sold or for sale, such person is liable to the party aggrieved for actual damages : Mass. 76,2 ; Me. 126,9. (So, probably, in all states, either by penal provision as above, or by the com- mon law.) Any person who has first adopted, recorded, and used a trade-mark or name, whether within or beyond the limits of the state, is its original owner ; such ownership may be transferred in the same manner as personal property, and is entitled to the same pro- tection by suits at law : Me. 39,39 and 43 ; Cal. 3199 ; Nev. 4027,4029. And any court of competent jurisdiction may restrain, by injunction, any use of trade-marks or names in violation of this article : Mass. 76,7 ; Me. 126,11 ; Cal. ; Nev. Any person may secure the exclusive use of a trade-mark or name by filing his claim, with a description of the same, setting forth that he is the exclusive owner, with the Secretary of State or other officer: Me. 39,37; Ct. 1880,77,1 ; Mo. 7542; Ark. 6447-8; Cal. 3197 ; Ore. 33,1 ; Nev. 4020,4028 ; Col. 2244; Mon. G. L. 114,5. One who produces or deals in a particular thing, or conducts a particular business, may appropriate to his exclusive use, as a trade-mark, any form, symbol, or name, which has not been so appropriated by another, to designate the origin or ownership thereof; but he cannot exclusively appropriate any designation which relates only to the name, quality, or description of the thing or business, or the place where it is produced or carried on : Cal. 5991 ; Dak. Civ. C. 576. 446 GENERAL PROVISIONS. Foreign persons or corporations are entitled to similar protection, provided tliey make record of the trade-mark, as above provided, with the registers of deeds of the counties where they or their agents have a place of business : Ai'k. 6447 ; Dak. Civ. C. 576a. There are special provisions for recording the trade-marks of beverages, etc., and other goods, in many states. See also Equity, in Part IV. § 4061. Definition. The phrase trade-marh as here used includes every description of word, letter, device, emblem, stamp, imprint, brand, printed ticket, label, or wrap- per usually affixed by any mechanic, manufacturer, or merchant to denote any goods to be goods imported, made, compounded, produced, or sold by him, other than any name generally denoting any goods to be of some particular class or description : Cal. 3196; Dak. Civ. C. 415 ; Uta. 2019. So, in many states, in the Criminal Code ; see Part V. § 4062. "Warranty Marks. A manufacturer of leather or boots and shoes has, in two states, the exclusive right of stamping them with the first letter of his Christian name, his sur- name, and place of abode : Mass. 76,4 ; Me. 39,32. Such stamping is a warranty that the article is merchantable : Mass., Me. ; and it is not considered merchantable unless so stamped : Mass. (There are many similar statutes providing for the inspection of divers commodities, in other states, which it has not seemed best to collect, in this edition.) § 4063. Names. No person in business can assume or continue to use the name of a former partner or other person, either alone or in connection with others, without the written consent of such person or his representatives: Mass. 76,6; Me. 126,10. See generally in Arts. 530,540. § 4064. The Good "Will of a Business is the expectation of continued public patronage, but it does not include a right to use the name of any person from whom it was acquired : Cal. 5992 ; Dak. Civ. C, 577. The good will of a business is property, transferable like any other : Cal. 5993 ; Dak. Civ. C. 578. § 4065. Title Deeds. Instruments essential to the title of real property, not kept in a public record office pursuant to law, belong to the person in whom for the time being such title may be vested, and pass with it : Cal. 5994 ; Dak. Civ. C. 579. Art. 407. Patents and Copyrights. § 4070. General Principles. The author of any product of the mind, whether it is an invention or a composition in letters or art, or a design, with or without delinea- tion or other graphical representation, has an exclusive ownership therein, and in the representation or expression thereof, which continues so long as the product and the representations or expressions thereof made by him remain in his possession : Cal. 5980 ; Dak. Civ. C. 570. Unless otherwise agreed, a product of the mind in the production of which several persons arc jointly concerned, is owned by them as follows: (1) if the product is single, in equal proportions ; (2) if not single, in proportion to the contribution of each : Cal. 5981 ; Dak. Civ. C. 571. § 4071. Transfer. The owner of any product of the mind, or of any representa- tion or expression thereof, may transfer his property iu the same: Cal. 5982; Dak. Civ. C. 572. DEFINITIOXS. 447 § 4072. Publication. If the owner of a product of the mind intentionally makes it public, a copy or reproduction may be made public by any person, without responsi- bility to the owner so far as the law of the State is concerned : Cal. 5983 ; Dak. Civ. C. 573. § 4073. Subsequent Inventor. If the owner do not make it public, any other person subsequently and originally producing the same thing has the same right therein as tlie prior author, which is exclusive to the same extent against all persons except the prior author or those claiming under him : Cal. 5984 ; Dak. Civ, C. 574. § 4074. Letters and other private communications in writing belong to the person to whom they are addressed and delivered, but they cannot be published against the will of the writer except by authority of law : Cal. 5985 ; Dak. Civ. C. 575. TITLE VL — OF CONTRACTS. CHAPTER I. — GENERAL PRINCIPLES. Art. 410. Definitions. See also Arts. 423,424. § 4100. Contract. A contract is, in four states, defined to be an agreement between two or more parties for the doing or not doing of some specified thing : Cal. 6549 ; Dak. Civ. C. 870 ; Ga. 2714 ; La. 1761. An executed contract is, by the codes of three, defined to be one in which all the parties thereto have performed all the obligation which they have originally assumed : Cal. 6661 ; Dak. Civ. C. 952; Ga. 2715. An executory contract is one in which something remains to be done by one or more of the parties : Cal., Dak., Ga. A contract of record is one which has been declared and adjudicated by a court having juris- diction, or which is entered of record in obedience to, or in carrying out, the judgments of a court: Ga. 2710. A specialtn is declared to be a contract under seal, and is considered by the law as entered into with more solemnity, and consequently of higher dignity, than simple contracts : Ga. 2717. Simple contracts are declared to be all contracts except specialty and record contracts : Ga. 2718. They may be either in writing or rest only in words as remembered by witnesses. Parol contracts include only the latter : Ga. 2719. Court contracts are contracts filed with the county court. They may be any written agree- ment for lease, rent, or personal service not exceeding one year ; they have the effect of a juda:- ment, or decree for specific performance, and maybe enforced as siTch by the court by attachment for contempt, or other suitable process. Damages for breach maybe enforced in the same way; or the party injured may elect to have rescission and be restored to his original situation. In construing court conti'acts, time is regarded as of the essence. At the expiration of the term fixed for performance the relation established by the contract ceases, without notice to or from either party ; but the power of the court continues in so far that any order may be applied for within two months thereafter; otherwise breaches maybe sued within the limitation of time applying to ordinary contracts. The remedy herein provided in such court contracts is not ex- clusive, but cumulative. Ga. 2758-9,2761-4,2766-9,2772. If a court contract is signed by mark, it must specify that it was duly read over to the party executing : Ga. 2771. A contract is either express or implied. An express contract is one the terms of which are stated in words. An implied contract is one the existence and terms of which are manifested by conduct. All contracts may be oral, except such as are specially required by statute to be in writing : Cal. 6619-6622 ; Dak. Civ. C. 915-8. 448 GENERAL PRINCIPLES. The contract must not be confounded with the instrument in writing by which it is wit- nessed. The contra(;t may subsist, although the written act may for some defect be declared void ; and the written act may be good and authentic, although the contract it witnesses be illegal. The contract itself is only void for some cause or defect determined by law : La. To all contracts there must be at least two parties, — one who does or engages to do or not to do ; another to whom the engagement is made. If this latter party make no express agree- ment on his part, the contract is called unilateral, even in cases where the law attaches certain obligations to his acceptance. It is called a bilateral or reciprocal contract when the parties expressly enter into mutual engagements: La. 1765. No contract is complete without the consent of both parties. In reciprocal contracts it must be expressed. In some unilateral contracts the law provides that under certain circum- stances it shall be presumed : La. 1766. Contracts, considered in relation to their substance, are either commutative or independent, principal or accessory : La. 1767. Commutative contracts are those in which what is done, given, or promised by one party is considered as equivalent to or a consideration for what is done, given, or promised by the other. Independent contracts are those in which the mutual acts or promises have no relation to each other, either as equivalents or as considerations. A contract contaiuiug mutual covenants shall be presumed to be commutative, unless the contrary be expressed. A principal contract is one entered into by both parties on their own accounts, or in the several qualities they assume. An accessory contract is made for assuring the perfiirmance of a prior contract, either by the same parties or by others, — such as suretyship, mortgage, and pledge: La. 1768-1771. Considered in reLition to their effects, contracts are either certain or aleatory. A contract is aleatory or hazardous when the performance of that which is one of its objects depends on an uncertain event. It is certain when the thing to be done is supposed to depend on the will of the party, or when in the usual course of events it must happen in the manner stipulated. Contracts in general, under whatever denomination they may come, and whether they may or may not be included in any of the above divisions, are regulated by certain rules, which are the subject of this title. Certain contracts are regulated by particular rules which are established in the parts of the code which treat of those contracts : La. 1775-8. § 4101. Subject of Contract. See § 4122. All things that are not legally forbidden by law may legally become the subject of, or the motive for, contracts ; but different agreements are governed by different rules, adapted to the nature of each contract, to distinguish which it is necessary in every contract to consider : — 1. That which is the essence of the contract, for the want whereof there is either no con- tract at all or a contract of another description. Thus a price is essential to the contract of sale ; if there be none, it is either no contract, or, if the consideration be other prctperty, it is an exchange. 2. Things which, although not essential to the contract, yet are implied from the nature of such agreement, if no stipulation be made respecting them, but which the parties may expressly modify or renounce without destroying the contract or changing its description ; of this nature is warranty, which is implied in every sale, but which may be modified or renounced without changing the character of the contract or destroying its effect. 3. Accidental stipulations which belong neither to the essence nor the nature of the con- tract, but depend solely on the will of the parties. The term given for the payment of a loan, the place at which it is to be paid, and the nature of the rent payable on a lease are examples of accidental stipulations. What belongs to the essence and to the nature of each particular description of contract is determined by the law defininnformity to the last paragraph. Performance of the conditions of a proposal, or the acceptance of the consideration offered with a proposal, is an acceptance of the proposal. An acceptance must be absolute and unqualified, or must include in itself an acceptance of that character which the proposer can separate from the rest, and wliich will conclude the per- son accepting. A qualified acceptance is a new proposal. A proposal may be revoked at any time before its acceptance is communicated to the pro- poser, but not afterwards. A proposal is revoked, — 1. By the communication of notice of revocation by the proposer to the other party, in the manner prescribed above for the communication of conseut, before his acceptance has been communicated to the former; 2. By the lapse of the time prescribed in such proposal for its acceptance, or, if no time is so prescribed, the lapse of a reasonable time without communication of the acceptance ; 3. By the failure of the acceptor to fulfil a condition precedent to acceptance ; or, 4. By the death or insanity of the proposer. A contract which is voidable solely for want of due consent may be ratified by a subsequent consent. A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the fiicts are known, or ought to be known, to the person a«ceptiug : Cal. 6580-6589 ; Dak. Civ. C. 891-900. When the parties have the legal capacity to form a contract, the next requisite to its validity is their consent. This being a mere operation of the mind, can have no effect un- less it be evinced in some manner that shall cause it to be understood by the other parties to the contract. To prevent error in this essential point, the law establishes, by certain rules adapted to the nature of the contract, what circumstances shall be evidence of such con- sent, and how those circumstances shall be proved ; these come within the purview of the law of evidence. As there must be two parties at least to every contract, so there must be something pro- posed by one and accepted and agreed t() by another to form the matter of such contract; the will of both parties must unite on the same point. It is a presumption of law that in every contract each party has agreed to confer on the otiier the right of judicially enforcing the performance of the agreement, unless the contrary be expressed or may be implied. The contract consisting of a proposition and the consent to it, the agreement is incomplete until the acceptance of the person to whom it is proposed. If he who proposes should, before that consent is given, change liis intention on the subject, the coneuiTence of the two wills is wanting, and there is no contract. The party proposing shall be presumed to continue in the intention which his proposal ex- pressed if, on receiving the unqualified assent of him to whom the proposition is made, he do not siornify the change of his intention. He is bound by his proposition, and the signification of his dissent will be of no avail if the proposition be made in terms which evince a design to give the other party the right of con- cluding the contract by his assent ; and if that assent be given within such time as the situation of the parties and the nature of the contract shall prove that it was the intention of the pro- poser to allow. But when one party proposes and the other assents, then the obligation is complete, and by virtue of the right each has impliedly given to the other, either of them may call for the aid of the law to enforce it. The acceptance need not be made by the same act, or, in point of time, immediately after the proposition ; if made at any time before the person who offers or promises has changed his mind, or may reasonably be presumed to have done so, it is sufficient. The acceptance to form a contract must bo in all things conformable to the offer ; any con- dition or limitation contained in the acceptance of that which formed the matter of the offer gives him who makes the offer the right to withdraw it. DEFINITIONS. 451 This takes place even when more is promised than was demanded, or when less is offered than was required ; for example, if a request is made to borrow fifty dollars, and the party answers that he will lend one hundred dollars ; or if the request be to borrow one hundred dollars, and the answer that fifty will be lent, there is no obligation in either case without a further assent of the borrower to take the one hundred, in the first case, and the fifty in the other ; for the proposal to borrow fifty does not necessarily imply an assent to borrow one hundred, nor does the proposal to lend one hundred necessarily imply a desire to lend only fifty. The modification or change of the proposition is, in all respects, considered as a new ofter, and the party making it is bound by the acceptance in the same manner as if the original proposition had been made by him. When, however, from the circumstances of the case, the offer necessarily implies an assent to the modification of the acceptance, then the obligation is complete, although there be a difference in terms between the one and the other. If, for example, one offers to sell a certain article for one hundred dollars, and the other, not having yet received the offer, should on his part propose to give two hundred dollars, the proposal to give the greater sum necessarily implies an assent to take it for a less, and the contract is complete at the lowest sum. But a consent to give anything else, although of a greater value than that contained in the offer, or to give the same or a larger sum at a different term of payment, does not imply an assent to the ofter, and there is in that case no obligation. The obligation of a contract not being complete until the acceptance, or, in cases where it is implied by law, until the circumstances which raise such implication are known to the party proposing, he may therefore revoke his offer or proposition before such acceptance, but not without allowing such reasonable time as from the terms of his offer he has given, or from the circumstances of the case he may be supposed to have intended to give, to the party, to com- municate his determination. If the I'arty making the offer die before it is accepted, or he to whom it is made die before he has given his assent, the representatives of neither party are bound, nor can they bind the survivor. But if the contract be accepted before the death of the party offering it, although he had no notice of it, the obligation is complete ; but if the representatives assent to an accept- ance of the surviving party in the fii'st instance, or the survivor assent to an acceptance made by the representatives in the second instance, then it becomes a new contract between the representatives and the surviving party. The proposition as well as the assent to a contract may be express or implied, — Express when evinced by words, either written or spoken. Implied, when it is manifested by actions, even by silence or by inaction, in cases in which they can from circumstances be supposed to mean, or by legal presumption are directed to be considered as evidence of, an assent. Express consent must be given in a language understood by the party who aecepts, and the words by which it is conveyed must be in themselves unequivocal ; if they may mean diflerent things, they give rise to error which, as is hereinafter provided, destroys the effect of a contract. Even when words are unequivocal and expressive of assent they are not always obligatory, when from the context, if in writing, or from what in speech is equivalent to it, the words which immediately precede or follow, it appears that the party did not intend to obligate himself. Unequivocal words, expressive of mere intent, do not make an obligation. A positive promise that, from the manner in which it is made, shows that there was no serious iutent to contract, creates no obligation. Actions without words, either written or spoken, are presumptive evidence of a contract, when they are done under circumstances that naturally imply a consent to such contract* To receive goods from a merchant without any express promise, and to use them, implies a con- tract to pay the value. If an offer is made of an article in deposit, and the article is received, the contract of deposit is complete. If a mandate is acted on, the mandatory is bound in the same manner as if he had accepted in writing. In all those cases and others of the like nature all the conditions which he who gives or proposes annexcil to the delivery or the acceptance of the proposition are also presumed to have been accepted by the act of receiving. If the mer- chant in delivering the goods dei-lare that they must be paid for by a certain time, if tlie depositor designate how the deposit is to be kept, or the mandator in what manner his com- 452 GENERAL PRINCIPLES. mission is to be executed, he who receives and acts is obligated to the performatice of all these conditions. Silence and inaction are also, under some circumstances, the means of showing an assent that creates an obligation ; if, after the termination of a lease, the lessee continue in possession, and the lessor be inactive and silent, a complete mutual obligation for continuing the lease is created by the act of occupancy of the tenant on the one side, and the inaction and silence of the lessor on the other. Where the law does not create a legal presumption of consent from certain facts, then, as in the case of other simple presumptions, it must be left to the discretion of the judge whether assent is to be implied from them or not : La. 1797-1818. § 4109. Breach of Contracts. (See, generally, in Part IV., Division II.) For every violation of a contract, express or implied, and for every injury done by another to person or prijperty, the law gives a right to recover (which is a chose in action) and a remedy to enforce it (by action at biw) : Ga. 2243. Art. 411. Of the Parties. § 4110. Who may Contract." In four states, generally, all persons can con- tract except (1) married women, infants, insane persons, and drunkards : Ga. 2729 ; La. 1782. (2) Infants, insane persons, and persons deprived of civil rights : Cal. 6556 ; Dak. Civ. C. 872. Besides the general incapacity which persons of certain descriptions are under, there are others applicable only to certain contracts, either in relation to the parties, — such as a husband and wife, tutor and ward, — whose contracts with each other are forbidden ; or in relation to the subject of the contract, such as purchases by the administrator of any part of the estate which is committed to his charge, and the incapacity of the wife, even M'ith the assent of the husband, to alienate her dotal property, or to become security for his debts. These take place only in the cases specially provided by law, under different titles of this code : La. 1790. Note. — " For other states, and for the law in detail, see Division II., generally. § 4111. Incapacity as a Defence." In Georgia, any person may plead bis own in- capacity to contract : Ga. 273G. The persons who have treated with a minor, person interdicted, or of insane mind, or with a man-ied woman, cannot plead the nullity of the agreement, if it is sought to be enforced by the party when the disability shall cease, or by those who legally administer the rights of such per- son during the disability. If the contract be reciprocal it must not be enforced on one side only ; and if the minor or other incapacitated person opposes his incapacity against any part of the agreement, the whole of the contract is void. If, in a contract with an incapacitated person, or in a contract void for want of form, entered into with any one for the benefit of such incapacitated person, any consideration be paid or given, and the contract be afterwards invalidated on account of such incapacity or want of form, the consideraticm so paid or given must be restored, if it was applied to the necessary use or benefit of the incapacitated person. A person who, being ignorant of the incapacity of one unable to contract, shall make an agreement with such person, may, immediately after he has discovered the incapacity, call on the party, if the incapacity have ceased, or on the person having the legal administration of liis affairs, if it have not, to confirm or annul the contract; and if it be a ccmtract of such kind as tlio administrator might have made, then his assent shall confirm it, or his dissent shall free the contracting party from the obligation on his part. If the assent of a family meeting would have been necessary to authorize the contract, it may be called, on the application of the party, and their decision shall have the same effect in confirming or invalidating the contract that it would have had on its formatitm. If a contract, made by a person incapacitated from contracting, shall be confirmed by him after his incapacity sliall cease, the ric;]its of third persons acquired before such confirmation arc nut impaired thereby, even if such rights were acquired with notice of the invalid act. OF THE PARTIES. 453 Those who may be interdicted from the enjoyment of their civil rights in consequence of a conviction for crime, cannot oppose their incapacity against the performance of any contract they may have made, unless it be against some person having power over them during their confinement, nor can any person with whom they contract plead such incapacity: La. 179] -6. Note. — « For special cases, see Division II., generally. § 4112. Lex Loci. The code of Georgia enacts that sometimes persons are capable to contract by the law of the place of contract, but incapable under the law of the home state ; ia such case the law of the place of contract is generally enforced, unless the circumstances show an attempt to evade the law <.)f the state, or the contract is of such a character as contravenes the policy of the state law : Ga. 273S. § 4113. Joint Contracts, or contracts which would be joint by the common law, are, in many states, declared to be construed as joint and several : N.J. Ohli- (jations, 2 ; 111. 76,3 ; Kan. 21,1 ; Del. 63,9 ; Tenn. 3486 ; Mo. 658 ; Ark. 3900 ; Col. 1834; Mon. G. L. 772 ; Ala. 2905; N.M. 1845,1889. Where all the parties who unite in a promise receive some benefit from the consideration, whether past or present, their promise is presumed to be joint and several. A promise made in the singular number, but executed by several persons, is presumed to be joint and several : Cal. 6659M30; Dak. Civ. C. 950-1. In case of the death of cue or more joint obligors or promisors, the joint debt or contract survives against the heirs or administrators as well as against the survivors : Me. 82,28; Vt. 935; R.L° 204,28; N.J. Obligations, 3; Pa. Abatement, 12; Ind. 624; Minn. 53,19 ; Kan. 21,2; Neb. 1,23,231 ; Md. 64,51 ; Va. 141,13 ; W.Va. 12,13; Ky. 22,8; Civ. C. 27; Tenn.; Mo. 659; Ark. 3898; Ala.; Miss. 1134; N.M. 1885. If all the obligors die, the debt or contract survives against the heirs or adminis- trators of all the obligors : Kan. 21,3 ; Mo. 660 ; Ark. 3899. For other states, see Art. 501, Joint Debtors, and in Part IV., Division I. Note. — " But the creditor must first get execution against the surviving debtors. § 4114. Civil Law : General Provisions. Where there are more than one obligor or obUgee named in the same contract, the obligation it may produce may be either several or joint or in solido, both as regards the obligor and the obligee. Several obligations are produced when what is promised by one of the obligors is not prom- ised by the other, but each one promises separately for himself to do a distinct act ; such obligations, although they may be contained in the same contract,- are considered as much indi- vidual and distinct as if they had been in different contracts, and made at different times. In like manner, a contract may contain distinct obligations to perform different things in favor of several persons ; the obligations in this case are several and unconnected, and each obligee has his separate and distinct remedy on the obligation created towards him individually. When several persons join in the same contract to do the same tiling, it produces a joint obligation on the part of the obligors. When one or more persons make an obligation to several persons for the perfonnance of something for the common benefit of all the obligees, it creates an obligation which is joint in favor of tlie obligees. When several persons obligate themselves to the obligee by the terms in solido, or use any other expressions which clearly show that they intend that each one shall be separately bound to perforin the whole of the obligation, it is called an obligation in solido on the part of the obligors. In like manner, when the obligor contracts expressly, or by using the technical words in solido, that he will give to either oue, or to all of several obligees the right of enforcing the ob- ligation against him, it creates an obligation in solido in favor of the obligees : La. 2077-2083. § 4115. Of the Rules which govern Several Obligations and Joint Obligations. Several obligations, although created by one act, have no other effects than the same obliga- tions would have had if made by separate contracts; therefore they are governed by the rules which apply to all contracts in general. 454 GENERAL PRINCIPLES. lu every suit on a joint contract all the obligors must be made defendants, and no judgmeut can be obtained against any unless it be proved that all joined in the obligation, or are by law presumed to have done so. In a suit on a joint obligation, judgment must be rendered against each defendant separately for his proportion of the debt or damages, if the suit resolves itself into damages. If the suit be for a specific performance, each defendant may be compelled to execute his proportion of the obligation, if the nature of the case permit and justice require it. The proportion meant by this and the succeeding articles is calculated by the number of the obligors, each one answering for an equal part, unless the parties have expressed a different intention. If one of the obligors in a j(nnt-obligation has performed or discharged his part of the obli- gation, although he must be joined in the suit on account of the eventual interest he has for the repetition of his payment, if the contract be disproved or annulled ; yet, if the contract bo affirmed, the defendant who has paid his proportion or performed his part shall have judgment. The judgment for the costs is in solido against all the defendants who have not paid or per- formed their parts : La. 2034-7. § 4116. Death of Parties. A written obligation to a person who happens to be dead at the time of its execution may be proceeded on by the representative of such person or the sur- viving obligees, as if it had been executed in such pers(m's lifetime : Va. 141,12 ; W.Va. 12, 12 ; Ky. 22,9. In any contract for the breach of which damages could be recovered, or which could be specifically enforced between the original parties, the obligation is incurred, and the right is vested in their representatives, although they are not specially named, unless the con- trary intent is expressed, or unless it results from the nature of the agreement : La. 1763. § 4117. Volunteers. A contract made expressly for the benefit of a third person may be enforced by him at any time before the parties rescind it : Cal. 6559; Dak. Civ. C. 875. § 4118. Who are Parties. Those only are parties to a contract who have given their consent to it, either expressly or by implication. The cases in which consent is implied ai'e particularly determined by law : La. 1780-1. It is essential to the validity of a contract, not only that the parties should exist, but that it should be possible to identify them : Cal. 6558; Dak. Civ. C. 874. Art. 412. The Consideration. See also §§ 4024,4706. § 4120. Nudum Pactum. The code of Georgia provides that a consideration is essen- tial to a contract which the law will enforce : Ga. 2739. Definitions. A ffood consideration, in Georgia, is one founded on natural duty and aftection or a strong moral obligation ; a valuable one is founded on money, or something having a value in money, or on marriage : Ga. 2741. So, value or a valuable consideration is a thing of value parted with, or a new obligation assumed, at the time of obtaining a thing, which is a substantial compensation for it: Dak. Civ. C. 2121. Nature of the Consideration. Three codes declare a consideration valid M'heu any benefit accrues to the promisor or any injury to the promisee ; Cal. 6G05 ; Dak. Civ, C. 906 ; Ga. 2740. So, in Georgia, a promise of another is good con- sideration for a promise : Ga. 2744. And in mutual subscriptions for a common object, the promises of the others are a good consideration for the promise of each : Ga. An existing legal obligation resting on the promisor or a moral obligation originating in some benefit conferred upon him or prejudice suff"ered by the promisee, is also a good con- sideration to the extent of such obligation, but no further. The consideration of a contract must be lawful within the meaning of ^ 4130. If any part of a single consideration for one or more objects, or of several considerations for a single object, is unlawful, the entire contrai^t is void. A consideration may be executed (»r executory, in whole or in part. In so far iis it is execu- tory it is subject to the provisions of this article. THE CONSIDERATION. 455 "When a consideration is executory, it is not indispensable that the contract should specify its amount or the means of ascertaining it. It may be left to the decision of a thu'd person, or regulated by any specified standard. When a contract does not determine the amount of the consideration, nor the method by which it is to be ascertained, or when it leaves the amount thereof to the discretion of an interested party, the consideration must be so much money as the object of the contract is reasonably worth. Where a contract provides an exclusive method by which its consideration is to be ascer- tained, which method is on its face impossible of execution, the entire conti'act is void. Where a contract provides an exclusive method by which its consideration is to be ascer- tained, which method appears possible on its face, but in fact is or becomes impossible of exe- cution, such provision only is void. The burden of proving consideration rests upon the party seeking to avoid the contract : Cal. 6606-6615; Dak. Civ. C. 907-V14. Of the Cause or Consideration of Contracts. An obligation withtjut a cause, or with a false or unlawful cause, can have no efifect. An agreement is not the less valid, though the cause be not expressed. The cause is unlawful, when it is forbidden by law, when it is contra bonos mores (contrary to moral conduct) or to public order. If the cause expressed in the consideration should be one that does not exist, yet the contract cannot be invalidated, if the party can show the existence of a true and sufficient consideration: La. 1893-1900. By the cause is here meant the consideration or motive for making the contract ; and a con- tract is said to be without cause whenever the party was in error, supposing that which was his inducement for contracting to exist, when in fact it had never existed or had ceased to exist before the contract was made. The contract is also considered as being without cause when the consideration for making it was something which, in the contemplation of the parties, was thereafter expected to exist or take place, and which did not take place or exist. A gift in con- sideration of a future mai'riage is void by this rule, if the marriage do not take place. "Where the consideration or cause of the contract really exists at the time of making it, but afterwards fails, it will not affect the contract, if all that was intended by the parties be carried into effect at the time. The destruction of property sold, after the sale is perfected, without the fault of the seller, is a case governed by this rule. But, if the contract consist of several successive obligations to be performed at different times, and the equivalent is not given in advance for the whole, but is either expressly or im- pliedly promised to be given at future periods ; then, if the cause of the contract, corresponding to either of the successive obligations, should fail, the obligation depending on it will cease also. Thus in leases for years, the obligation to pay the yearly rent ceases, if the property which is leased should be destroyed : La. 1896-9. § 4121. Consideration Presumed. The code of Georgia enacts that in some cases a consideration is presumed and an averment to the contrary will not be received ; as, generally, (1) contracts under seal : Ga. 2739. But in several states, a seal is only presumptive evidence of consideration, which may be rebutted as if the instrument was not sealed : N.Y. Civ. C. 840 ; N.J. Evidence, 16 and 52 ; Mich. 7520; Wis. 4195 ; Ore. C v. C. 743 ; Ala. 2981. See also § 1564. In several states, all contracts in writing signed by the party to be bound or his authorized agent or attorney import a consideration (/. e., it is presumed prima facie) : To. 2113 ; Kan. 21,7 ; Tenn. 2479 ; Mo. 663 ; Tex. 4487 ; Cal. 6614,11963(39) ; Dak. Civ. C. 913 ; Ala. 3035; Fla. 162,88. (2) Negotiable instruments, alleging a consideration upon their face, in the hands of inno- cent holders without notice, who have received them before dishonor : Ga. See also § 4739. In Missouri, all instruments made and signed by any person or his agent wliereby he promises to pay any other or his order or bearer any sum of money or property therein men- tioned shall import a consideration and be due and payable as therein mentioned : Mo. 663. § 4122. The Object of the Contract. Everything is deemed possible except that which is impossible in the nature of things : Cal. 6595-8 ; Dak. Civ. C. 901-4. Where a contract has but a single object, and such object is unlawful, whether in whole or in part, or wholly impossible of performance, or so vaguely expressed as to be wholly unascertain- 456 GENERAL PRINCIPLES. al)le, the entire contract is void : Cal. 6599(V.3) ; Dak. Civ. C 90.5. Contracts are either gratuitous or onerous ; the former benefit the person with whom they are made withont profit or advantage received or promised as a consideration for it. It is not the less gratuitous if it pro- ceed either from gratitude or the liope of receiving a future benefit. Anytliiug given or promised as a consideration, thuugh unequal to it iu vahie, malies the contract onerous : La. 1772-4. Louisiana Law. Every contract has for its object something which one or both of the parties oblige themselves to give, or to do, or not to do. The mere use, or the mere possession of a thiug, may be, as well as the thing itself, the object of a contract. All things, in the most extensive seuse of the expression, corporeal or incorporeal, movable or immovable, to which rights can legally be acquired, may become the object of contracts. An obligation must have for its object something determinate, at least as to its species. The quantity of a thing may be uncertain, provided it be capable of being ascertained. Future things may be the object of au obligation. One cannot, however, renounce the succession of an estate not yet devolved, nor can any stipulation be made with regard to such a succession, even with the consent of him whose suc- cession is in question. Yet a future succession may become the object of a man-iage c(»ntract ; it may be stipulated that such succession shall be dotal or paraphernal, that it should be vested iu real estate, or other covenants of the like nature, for the benefit of one of the parties or their children. No one can, by a contract in his own name, bind any one but himself or his representatives ; but he may contract, in his own name, that another shall ratify or perform the stipulation which hj makes, and iu this case he shall be liable in damages, if the contract be not ratified or per- formed by the person for whose act he stipulates. A person may also, in liis own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation ; and if such third person con- sents to avail himself of the advantage stipulated in his favor, the contract cannot be revoked. The object of a contract must be possible, by which is meant physically or morally pos- sible. The possibility must be determined, not by the means or ability of the party to fulfil his agreement, but by the nature of the thing which forms the object of it. That is considered as morally impossible, which is forbidden by law, or contrary to morals. All contracts having such an object are void : La. 1883-1892. § 4123. Want or Failure of Consideration is a defence: Ind. 366 ; lo. 2114; Kan. 21,8; Tenu. 2480 ; Ida." 1874-5,649,5 ; Ga. 2857 ; Ariz.« 3460. JExcept to negotiable paper transferred iu good faith and for valuable consideration before maturity ; see § 4739 : Ind., lo. And except as against an action brought by an innocent holder in good ftxith in any contract : Kan., Tenn. Failure of Consideration may be pleaded in defence to the promise : Vt. 911 ; Ind.; Ga. 2748. But if the want or failure be partial, an apportionment must be made according to the facts of each case : Vt. ; Ind. ; lo. ; Kan. ; Ida. ;" Ga. ; Fla. 162,89. Note. — " Tliis section applies, in the noted states, to the bonds, due-bills, non-negotiable instru- ments, etc., specified in Art. 403. § 4124. Mistake. In Georgia, a consideration founded on a mistake of fact or law is invalid : Ga. 2743. See §4194. § 4125. Inadequacy of Consideration alone will not avoid a contract ; but if it be great, it is evidence of fraud ; and on a suit for damages for breach of contract it will be evi- dence in reduction of damages : Ga. 2742. § 4126. Impossible Considerations will net sustain a promise : Ga. 2746. Otherwise, however, if tlie consideration be only improbable : Ga. § 4127. A Consideration Good in Part and bad in part, the promise will, in Georgia, he sustained or not, according as it is entire or severable (§ 4105) : Ga. 2745. But if illegal in part, the whole promise fails : Ga. VOID CONTRACTS. 457 Want or failure of coosideration in part may be shown, according to § 4123, as a partial defence. § 4128. A Consideration Moving from Another (see also $ 4117) is good, and will sus- tain an action by the promisee, though a stranger to the consideration : Ga. 2747. Art. 413. Void Contracts. § 4130. The Following Contracts are Void, and cannot be enforced : (A) in three codes, contracts to do au immoral or illegal thing: Cal. 6667; Dak. Civ. C. 953; Ga. 2749. Compare §§ 4101,4122. (B) In Georgia, contracts against public policy : Cal., Dak., Ga. Such as (1) contracts in restraint of trade : Ga. 2750 ; (2) wagering contracts : Ga. ; (3) contracts of maintenance or champerty (see § 1401, and also in Part V.) : Ky. 11,1 j Tenn. 2445 ; Ga. ; (4) contracts to evade or oppose the revenue laws of another country : Ga. ; (5) con- tracts tending to corrupt legislation : Ga. ; (6) contracts tending to corrupt the judiciary : Ga. (7) All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, tort, or violation of law, are against the policy of the law: Cal. 6668 ; Dak. Civ. C. 954. If the contract is severable, that which is legal will not, in Georgia, be annulled by that wliich is illegal : Ga. 2749. (8) Penalties imposed by contract for any non -performance thereof are void ; but this does not apply to such bonds or obligations, penal in form, as have heretofore been commonly used : Dak. Civ. C. 955. (9) Every contract by which the amount of damages to be paid, or other compensation to be made, for a breach of an obligation, is determined in anticipation thereof, is to that extent void : Cal. 6670 ; Dak. Civ. C. 956. (10) Except, that the parties to a contract may agree therein upon an amount which shall be presumed to be the amount of damages sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage : Cal. 6671 ; Dak. Civ. C. 9.57. (11) Every stipulation or condition in a contract by which any party thereto is restricted from enforcing his rights under the contract by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his right, is void : Dak. Civ. C. 958. (12) Contracts, conveyances, etc., any part of the consideration of which has been the illegal sale of intoxicating liquors, are void : Ct. 1882,107,9,1. See also in Part IV. (13) Every contract by which any one is restrained from exercising a lawful profession, trade, or business, is void, except that one who sells the good-will of a business may agree wiili the buyer to refrain from carrying on a similar business within a specified locality ; and partners may, upon, or in anticipation of, a dissolution of the partnersliip, agree that none of of them will carry on a similar business within the same city or town wliere the partnership business has been transacted, or within a specified part thereof: Cal. 6073-5; Dak. Civ. C. 959-961. (14) Every contract in restraint of the marriage of any person, other than a minor, is void : Cal. 6076 ; Dak. Civ. C. 962. (15) Marriage brolverage bonds or contracts are void : Ga. 3182. (16) Contracts to pay attorney's fees inserted in any bill, note, or evidence of debt, are void: Ind. 5518. § 4131. Seals. An agreement in writing without a seal for the compromise or settlement of a debt or controversy is valid as if sealed : Ind. 450 ; Tenn. 4538-9 ; Cal. 11934 ; Ore. Civ. C. 745 ; Ala. 3040. See generaUy ^ 1564-5,4182. § 4132. Gaming Contracts" are, in most states, void (for negotiable paper, see Art. 470) : Mass. 99,5 ; Me. 125,10; Vt. 4311 ; E.T. 246,16; Ct. 1<),5,1 ; N.Y. 1,20,8,-3,8 ; N.J. Gaming, 3 ; Pa. Gaming, 8 ; 0. 4269 ; Ind. 4950 ; 111. 38, 131 ; Mich. 2027 ; Wis. 4538 ; lo. 4029 ; Minn. 99,14 ; Md. 72,153 ; Va. 139,2 ; W. Va. 98,1 ; N.C. 2841 ; Ky. 47,1 ; Tenn. 2438 ; Mo. 5722 ; Ark. 3406 ; Ore. 458 GENERAL PRINCIPLES. Cr. C. 709; 1876, p. 40, § 2 ; Wash. 1254; Wy. 35,118; S.C. 1723; Ga. 2753; Ala. 2131 ; Miss. 990 ; N.M. 2293. See also in Part V. Money paid or property delivered upon such consideration may generally be recov- ered bacls (A) by the loser if he sue (1) within six months after the loss : ^.J.ib. 2 and 5 ; 0. 4270 ; Ind. 4951 ; 111. 38,132 ; Ky. 47,4 ; Ga. ; Ala. ; Miss. 992 ; (2) within three months thereafter: Mass. 99,1 ; Me. 125,8 ; KY. ib. 14 ; Mich. 2023-4; Va. ib. 3 ; AV.Ya. 98,2; Tenn. 2440,3407 ; Mo. 5720,5728 ; Ark." 3403 ; S.C. 1720; (.3) at any time : Minn. 99,13 ; Neb. 3,214 ; Md. ; Wash. 1255 ; (4) within a year: N.M. 2290, 2302. (5) Double the value of such money or property may be recovered at any time: Ore. 1876, p. 40, § 3 ; (6) within one month : Vt. 4310; (7) three months: Ct. 1G,5,2 ; (8) ten days : Pa. ib. 9. (B) By any person, after the expiration of the time above limited, if he sue (1) at any time within four years thereof: Ga. ; five years : Ky. 47,2 ; (2) at any time, with- out special limit : Me. ; 0. 4273 ; 111. ; Va. ib. 5 ; S.C. 1718 ; (3) within six months thereof : N.J. ib. 6 ; (4) twelve mouths : Tenn. 2441 ; Ala. 2132. Treble the value of the money or property lost may be recovered by such person suing : Mass. ; Me. ; 111. ; Va. ; Ky. ; S.C. 1721. The sum recovered will be for the joint use of such person suing and (in Georgia, the school fund of) the county : 111., S.C, Ga. So, half to the person suing, half (1) to the state : N.J., Va., S.C. ; or (2) to the town : Me. (3) For the use of the widow and next of kin of the person who lust the money : Teun., Ala. (C) All such contracts, evidences of debt or incumbrances or liens on property, ex- ecuted, upon a gaming consideration, are yoid (1) in the hands of any person ; Vt. ; Ct. ; N.Y. ; N.J. ; Pa.; 0.; Wis.; 111. 38,136; Mo. 5723; Wy. ; Ga. ; Miss. So, in all other states except as follows : (2) as between the parties and all other persons except bona fide holders without notice of the illegality : Me., Mich., Minn., Va., W.Va., Ore., Wash. ; (3) except negotiable bille and notes duly assigned (see Art. 470) : Me. ; (4) except as against bona fide subsequent purchasers of real estate : Me. The premises where the gambling took place are liable for "Such damages: 38,133. See also in Part IV. ; also § 2059. And if a mortgage or conveyance of land is adjudged void under the above provision, such land inures to the sole benefit of such persons as would be en- titled thereto were the mortgagor or grantor naturally dead: IST.Y. ib. 17; N.J. ih.4.; Mich. 2028; S.C. 1724; Miss. 9'^91. For futures, see Art. 477. Notes. — ° Such contracts void hecause given in consideration of gaming debts, include (1) all honds, mortgagps, and conveyances : Mass. ; Me. ; Vt. ; R.I. ; Ct. ; N.Y, ih. 16 ; N.J. ; Pa. ; 0. ; Ind. ; Mich. ; Wis. ; lo. ; Minn. ; Va. ; N.C. ; Ky. ; Mo. ; Ark. ; Ore. ; Wash. ; Wy. ; S.C. ; Miss. ; N.M. ; (2) judgments confessed: N.Y., N.J., Pa., 111., Mo., Ark., S.C, Miss., N.M. ; (3) bill and notes, negotiable or not, whether assigned or indorsed, or not : Mass., Me., Vt., E.I., Ct., N.Y., N.J., Pa., 0., Ind., 111., lo., Mich., Minn., Wis., Mo., Ark., Ore., Wash., Wy., S.C, N.M. See also Art. 470. * They do not include (1) money, etc., lost on any turf race : Ark. 3405; (2) nor in- surance contracts, bottomry, or respoudentias : N.Y. ih. 10; 111. 38,134; Wis. § 4133. Record of Contracts. In Virginia, any contract in writing made in respect to real estate or goods and chattels, in consideration of marriage, or for the sale or conveyance of real estate or a term therein of not more than five years, shall, from the time of record, be as against creditors and purchasers as valid as if it were a deed conveying the estate embraced in such contract : Va. 114,4. Until so recorded it is void as against creditors : Va. 114,5. § 4134. Holidays. (See also § 4717.) The following days are declared legal holi- days for all purposes : January I : N.Y. 1875,27 ; Civ. C. 3343 ; N.J. Holidays, 1 ; Pa. Holidays, 1 ; Wis. 2577 ; Tex. 283.5-G ; Cal. 10 ; Ore. 1885, p. 49 ; Dak. Civ. C. 2115 ; Ida. C. Civ. P. 7 ; Mon. C. Civ. P. 514 ; Wy. 1879,47 ; Uta. 1882,30,1 ; C. Civ. P. 7. S.C. 1G36; Februaiy 22 : N.Y. ; N.J.; Pa.; Wis.; Minn. 124,1 ; Ky. 51,1; Tex.; THE STATUTE OF FRAUDS. 459 Cal. ; Ore. ; Dak. ; Mon. ; Wy. ; Uta. ; S.C. March 2 : Tex. April 21 : Tex. May 30 : N.Y. ; N.J. ; Pa. ib. 4 ; Wis. ; Cul. 10, Amt. ; Ore. ; Dak. 1885,88 ; Uta. July 4 : N.Y., N.J., Pa., Wis., Ky., Tex., Cal., Ore., Dak., Ida., Mon., Wy , Uta., S.C. July 24 : Uta. Days appointed by the governor for Thanksgiving : N.Y., N.J., Pu., Wis., Ky., Tex., Cal., Ore., Dak., Ida., Mon., Wy., Uta., S.C. ; or for Fast : N.Y., Pa., Ky., Tex., Cal., Ore., Dak., Ida., Uta. December 2-5 : jS.J., Pa., Wis., Ky., Tex., Cal., Ore., Dak., Ida., Mou., Wy., Uta., S.C. Sundays : Cal., Ore., Dak., Ida., Mon., Uta. All general election days : N.Y., N.J., Wis., Tex., Cal., Ore., Dak., Ida., Mon., S.C. Sunday, by tlie laws of some states, last's from midnight to midnight : Mass. 98,15 ; Mich. 2022; Minn. 100,21. When any legal holiday falls on Sunday, the following day is a holiday : N.Y. ; N.J. ib. 2; Wis.; Ky. 51,2; Cal. 11 ; Dak. Civ. C. 2116; Uta. Days other than holidays are called business days: Dak. Civ. C. 2117. § 4135. Contracts executed on Sunday are void : Ala. 2138. But in Micbigan and other states, the execution of contracts, doing business, etc., on Sunday, only subjects the offender to a fine : Mich. 2015. See, for other states, in Part V. Except in a few states, the above provisions do not apply to contracts (1) for the advance- ment of religion : Ala.; (2) or executed in case of necessity: Mich., Ala. ; (}\) or for some work of charity : Mich., Ala. ; (4) the making of mutual prou)it!es to marry : Mich. ; (5) the solenmization of marriage : Mich. Rut in Maine, no deed, contract, receii)t, or other instrument shall be held void by reason of being dated on Sunday, unless there is other proof of its being made and dehvered on that day than such date : Me. 82,115. No person who receives a valuable consideration for a contract, express or implied, made on the Lord's day shall defend any action upon such contract upon the ground that it was made on Sunday unless he restores the consideration : Me. 82,116. No person shall be compelled to labor on legal h(didays : Pa. Holidays, 1. See in Part ITT. Canal and railway companies shall not be required to attend to their works on Sundays : Pa. Sunday, 1. See in Part III. No person can travel on Sunday except in cases of charity, necessity, etc. : N.Y. 1,20,8,70. But the fact that a person is travelling on Sunday does not constitute a defence to an action for a tort or injury suifcred by such person on tliat day : Mass. 1884,37. See in Part IV. Jevrs. Tbe penalties and liabilities prescribed in this section do not apply to any person who conscientiously believes that the seventh day of the w-eek ought to be observed as the Sab- bath, and actually refrains from secular business and labor on that day: N.Y. 1847,349; Mich. 2021. So in most states ; see in Part V. Art. 414. The Statute of Frauds. § 4140. Clause 4 of the Statute Adopted. The English Statute 29 Charles II., C. 3, or some moditiuatiou of it, is enacted in all the states except Maryland, Louisiana, and New Mexico. Thus, in all the other states, clause 4 of the statute is enacted in full ; and no action shall be brought in any of the following cases : '^ — (1) To charge any executor or administrator upon any special promise to answer damages out of his own estate (in all the states below cited except Wis- consin, Minnesota, California, Colorado, Dakota, Idaho, Utah, Arizona, where this clause is omitted). (2) In all states, to charge any person upon any special promise to answer for the debt, default, or (in all except Pennsylvania) miscarriage (in Massachusetts, Maine, Vermont, New York, Michigan, Minnesota, Virginia, West Virginia, Ken- tucky, Nebraska, Washington, misdoing) of another ; see, however, note *. 460 GENERAL PRINCIPLES. (3) In all except Pennsylvania and North Carolina, to charge any person upon any agreement made in consideration of marriage (except, in many, mutual promises to marry : N.Y., Wis., Mich., Minn., Neb., Ky., Cal, Ore., Nev., Col., Wash., Dak., Ida., Mon., Wy., Uta., Ala., Ariz., and, in Georgia, marriage articles). (4) In all the states except as below (but for other states, see the separate clause ; § 4143) to charge any person upon any contract or sale of lands, tene- ments, or hereditaments, or any interest in or concerning them (or, in Connecti- cut, Texas, California, Idaho, upon any sale, etc., of real estate).' (This particular clause is not copied in New York, Pennsylvania, Illinois, Michigan, Wisconsin, Minnesota, Nebraska, Nevada, Colorado, Washington, Montana, Arizona ; see § 4143.) (5) In all states, except Pennsylvania, North Carolina, to charge any person upon any agreement that is not to be performed (in New York, Michigan, Wis- consin, Minnesota, Nebraska, California, Oregon, Nevada, Colorado, Washington, Dakota, Idaho, Montana, Wyoming, Utah, Alabama, Arizona, " by its terms ") within one year from the making thereof. Unless the agreement upon which the action is brought or some memorandum or note thereof is in writing and signed by the party to be charged therewith or by some other person '^ thereunto by him lawfully authorized : N.H. 220,14-15 ; Mass. 78,1 ; Me. 111,1 ; Yt. 981 ; E.I. 204,7 ; Ct. 19,11,40 ; N.Y. 2,7,2,2-4 ; 2,6,5,1 ; N.J. Frauds, 5 ; Pa. Frauds, 4=; 0. 4199 ; Ind. 4904 ; 111. 59,1 ; Mich. 6185 ; Wis. 2307,2327; Io.« 366.3-4; Minn. 41,6; Kan. 43,6; Neb. 1,32,8 and 25; Del. 63, 6,7 : Va. 140,1 : W.Va. 95,1 ; N.C. 1506,1552,1554; Ky. 22,1 ; Tenn. 2423 ; Mo. 2513 ; Ark. 3371 ; Tex. 2464 ; Cal. 6624 ; Ore. Civ. C. 775 ; Nev. 289,296,1 and 697; Col. 1521 and 1525 ; Wash. 2325 ; Dak. Civ. C. 920 ; Ida. C. Civ. P. 937; Prob. C. 215 ; Mon. Prob. C. 247 ; G. L. 166 and 171 ; Wy. 57,1 ; Uta. 1014, 1019 ; C. Civ. P. 1208 ; S.C. 2019 ; Ga.*^ 1950 ; Ala. 2121; Miss. 1292 ; Fla. 29,1 ; Ariz. 2125,2132. In two, such "other person" must be "lawfully authorized" in writing: Del. V. 1.3, C. 451; Ala. And in several, he must be authorized in writing when the contract relates to real estate as in clause 4: N.H., Yt., Minn., Cal., Ore,, Dak., Ida. See also § 4143. NoTE.s. — ° But in Iowa, nothing in the Statute of Frauds prevents the party to tlie eontrai;t suing and establishing the contract by evidence of the other party : To. 3667. And the statute relates merely to the [iroof of the contract, which may still be enforced as against the party making it if not denied in the pleadings : To. 3666. * But a promise to answer for the obligation of another is, in a few, deemed an original obligation of the promisor, and need not be in writing (1) where it is made by one who has received property of another upon undertaking to apply it pursuant to such promise, or by one who has received a discharge from an obligation in whole or part in consideration of such promise ; (2) when the creditor parts with value or enters into an obligation in consideration of the obligation in respect to which the promise is made, in terms or under circumstances such as to render the party making the promise the principal debtor and the person in whose behalf it is made his surety ; (S) when the promise, being for an antecedent obligation of another, is made upon the consideration that the party receiving it cancels the antecedent obligation, accepting the new promise as a substitute therefor ; or upon the consideration that the party receiv-ing it releases the property of another from a levy or his person from imprisonment under an execution on a judgment obtained upon the antecedent obligation ; or upon a consideration beneficial to the promisor, whether moving from either party to the antecedent obligation, or from another person ; (4) when a factor undertakes for a commission to sell merchandise and guarantee the sale ; (.0) when the holder of an instrument for the payment of money upon which a third person is or may become liable to him, transfers it in payment of a precedent debt of his own, or for a new consideration, and in connection with such transfer enters into a promise respecting such instrument ; Cal. 7794 ; Ida. Civ. C. 938 ; Uta. C. Civ. V. 1209. "= "For a longer term than one year : " R.I., Ct., lo., Va., W.Va., Ky., Tenn., JIo., Tex., Cal., Ore., Dak., Ida., Wy., Uta., Ala., Miss., Fla. ; or (2) three years: Ind. <* " Or guardian or trustee," in Georgia, and the statute does not apply to " contracts with overseers." THE STATUTE OF FRAUDS. 461 § 4141. Additional Clauses and Exceptions. In Louisiana, the case of any promise to pay the debt <)f a third person is added : La. 2278. Exceptions to § 4140, clause 1 or 2. Sucli a promise is good, though not in writing, up to $.5 : Del. 63,5. So, $20 : Pa. ib. 5. Such a promise is good up to $5 though not in writiug ; and good to $25 if proved by the oath of a witness : Del. 63,6. (1) In Georgia, no person can be charged upon an acceptance of a hill of exchange unless in writing, etc. : Ga. See, for other states, ^ 4720. (2) An agreement authorizing or employing an agent or broker to purchase or sell real estate for a compensation must be in writiug : Cal. G624, Amt. Vol. 3. § 4142. The Memorandum. The consideration need not, however, be ex- pressed in such note or memorandum, but may be proved by any legal evidence : Mass. 78,2 ; Me. 111,1; N.J. Frauds, 9 ; Ind. 4905; 111. 59,3; Mich. 6182,6189 ; Neb. 1,32,24 ; Va. 140,1 ; Ky. 22,1. But in a few, the consideration must be expressed in the writing (see § 4140 for citations) : Minn., Ore., Nev., Ala. In Delaware, there need be no such note, etc., of goods sold and delivered and other matter properly chargeable in accounts, but the books and oath of the plaintiff are sufficient : Del. 63,7. In the case of sales at auction (either of real or personal property : Ida., Ala.) the auctioneer's memorandum of the terms and conditions satisfies the Statute of Frauds : KY. 2,7,2,4; Mich. 6187; Wis. 2309 ; Minn. 41,8 ; Neb. 1,32,10; Cal. 6624,6798 ; Ore. Civ. C. 775 ; Nev. 291 ; Col. 1522 ; Dak. Civ. C. 920,1028 ; Ida. ; Mou. G. L. 168 ; Ala. 2122 ; Ariz. 2127; Ga. 2630. § 4143. Clause 1 Adopted.* (a) In a few states, the English statute is followed ; and all leases, estates, interests of freehold or terms of years or uncertain interests in lands created by livery of seisin or by parol only, not put in writing and signed by the parties creating it, or their agents lawfully authorized in writing, have the effect of leases at will only (except leases not (1) exceeding the term of three years reserving full rent : N.H., N.J., Pa. ; (2) one year: Mass, Me.,' Ark., S.C, Ga.) : N.H. 135.12 ; Mass. 120,3 ; Me. 7.3, 10 ; Vt. 1932 ; N.J. Frauds, 1 ; Pa. Frauds, 1 ; Mo. 2509 ; Ark. 3380 ; S.C. 2017; Ga. 2280. In others, (B) every contract for the leasing for a longer period than one year (except in Louisiana), or for the sale of any lands or interest in lands, is void unless some note or memorandum thereof (expressing the considera- tion : N.Y., Wis., Minn., Ore , Nev., Col.) be in writing and subscribed by the party by whom the lease or sale is made, or his agent lawfully authorized (in writing : 111., Mich., Kan., Cal., Ore., Ida.) : N.Y. 2,7,1,8-9 ; 111. 59,2 ; Mich. 6181 ; Wis. 2304 ; Minn. 41,12 ; Neb. 1,32,5 ; Ark. 3371 ; Tex. 2464 ; Cal. 6741 ; Ore. Civ. C. 775,993 ; Nev. 285-6 ; Col. 1517-8 ; Mon. G. L. 162-3 ; Uta. 1010 ; C. Civ. P. 1206 ; La. 2440,2275 ; Ariz. 2121-2. For other states, see also § 147L So, in one, all leases and contracts for leasing land for mining, and all other leases for a term exceeding three years, are void unless put in writing and .signed by the party to be charged therewith or some other pers(m thereunto lawfully authorized by him : N.C. 1743. Every transfer of immovable property must be in writing ; but if a verbal sale, or other dis- position of such property, be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property thus sold : La. 2275. Note. — « In this section only the strict Statute of Frauds provisions requiring a note in writing are inserted. Many state laws provide that a deed is necessary in these cases ; and a deed, of course, includes a "note in writiug ; " see § 1471. See also § 2002 for the effect of a parol demise. 462 GENERAL PRINCIPLES. § 4144. Clause 16 Adopted. The English statute is fcjllowed in most of the states • and no contract fur the sale of goods, wares, and merchandise for the price of $50 (in Maine, New Jersey, Missouri, Arkansas, $30 ; in New Hamp- shire, $33; in Arizona, $100 ; in California, Idaho, $200 ; in Montana, Utah, $300 ; in Vermont, $40 ; in Florida, Iowa, to any value) or more is valid, except the buyer accept and receive part of the goods sold or give something in earnest to bind the barcrain or in part payment, or unless some note or memorandum in writinfT of the bargain be made and signed by the parties to be charged therewith, or their atrents thereunto lawfully authorized : N.H. 220,16 ; Mass. 78,5 ; Me. 111,4; Vtr982 ; Ct. 19,11,41 ; N.Y. 2,7,2,3 and 8 ; N.J. Frauds, 6 ; Ind. 4910 ; Mich. '6186; Wis. 2308 ; lo. 3664; Minn. 41,7 ; Neb. 1,32,9 ; Del. 63,7 ; Mo. 2514 ; Ark. 3372 ; Cal. 6624,6739 ; Ore. Civ. C. 775 ; Nev. 290 ; Col. 1521 and 1525 ; Wash. 2326 ; Dak. Civ. C. 920,991 ; Ida. Civ. C. 937 ; Mon. G. L. 167 ; Wy. 57,2 ;'uta. 1015 ; S.C. 2020; Ga. 1950; Miss. 1295 ; Fla. 29,2 ; Ariz. 2126. And iu Georgia, it is specified to make no difference whether such goods, etc., are in esse or not. But in Iowa, this section docs not apply when the article of personal property sold is not at the time of the contract owned by the vendor and ready for delivery, but labor, skill, or money are necessarily to be expended iu producing or procuring the same : lo. 3665. An agreement to manufacture a thing from materials furnished by the manufacturer or by another person, is not within the provisions of the last section : Cal. 6740 ; Dak. Civ. C. 992. All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed $500, which are not reduced to writing, may be proved by any other competent evidence ; such contracts or agreements, above $500 in value, must be proved by at least one credible witness and other corroborating circumstances : La. 2:277. § 4145. Performance. The last five sections do not, in Georgia, apply (1) where the contract has been fully executed : Ga. 1951 ; (2) where there has been performance on the one side accepted by the other in accordance with the contract : Ga. ; (3) where there has been such part performance of the contract as would render it a fraud of the party refusing to comply if the court did not compel a performance : Ga. So, in many, nothing herein is to abridge the powers of a court to compel specific performance of agreements partly performed : N.Y. 2,7,1,10 ; Ind. 4908 Mich. 6183 ; Wis. 2305 ; Minn. 41,13 ; Neb. 1,32,6 ; Cal. 6741 ; Ore. Civ. C. 772 Nev. 287; Col. 1519; Dak. Civ. C. 993; Ida. Civ. C. 936; Mon. G. L. 164 Uta. 1011; C. Civ. P. 1207; Ariz. 2123. Thus, in two states, specially of sales of land where the purchaser be put in pos- session by the vendor and part of the purchase-money paid : lo. 3665 ; Ala. § 4146. Representations Concerning Character. In many states, no action can be brought (by the person to whom the representation, etc., was made) to charge a person upon or by reason of any representation or assurance made con- cerning the character, conduct, credit" or ability, trade or dealings of any other person, unless such representation, etc., was made in writing, and signed (1) by the party to be charged thereby : Mass. 78,4; Me. 111,3 ; Vt. 983 ; Ind. 4909 ; Mich. 6188; Va. 140,1 ; W.Va. 95,1 ; Ky. 22,1 ; Mo. 2515 ; Cal." 11974; Ore. Civ. C. 776 ; Ida." Civ. C. 939 ; Wy. 57,3 ; Uta." C. Civ. P. 1210 ; S.C. 2024 ; Ala. 2123 ; La. D. 1443 ; or (2) by some person thereunto by him lawfully authorized : Mass., Me., Vt., Ind., Mich., Ya., Ky., Mo., Wy., S. C, La., in writing : Ky. 22,20. But in several, it is sufficient if it is in the handwriting of the person to be charged, though not signed : Cal., Ore., Ida., Uta. Note. — "In the noted states the provision applies only to representations concerning credit. THE STATUTE OF FRAUDS. 463 § 4147. New Promise by Insolvent, etc. No promise for the payment of a debt made by an insolvent debtor who has obtained his discharge in bankruptcy or insol- vency proceedings is evidence of a new or continuing contract whereby to deprive the debtor of the benefit of such discharge in bar of the recovery of a judgment upon such debt, unless such promise is made by, or contained in, some writing signed by him or by some person thereunto by him lawfully authorized : Mass. 78,3; Me. 111,1 ; N.Y. 1882,324 ; N.J. Frauds, 8. Generally, a new promise, in order to take a contract out of the Statute of Limitations, must be in writing and signed (see § 4140) by the party to be charged thereby " or liis agent ; but this statute does not (except in 111., lo., Minn., Va., W.Va., Tex., Cal., Nev., Ida., Uta., Miss., La., N.M., Ariz. ; in these excepted states the statutes are silent on this point) alter the effect of a payment of prin- cipal or interest by any person : Mass. 197,15-16; Me. 81,97 and 100; Vt. 974, 975 ; N.Y. Civ. C. 395 ; KJ. Limitations, 10 ; 0. 4992 ; Ind. 301 ; 111. 83,16 ; Mich. 8725-9; Wis. 4243,4247; lo. 2539; Minn. 66,24; Kan. 80,24; Neb. 2, 22 ; Va. 146,10 ; W.Va. 119,8 ; N.C. 172 ; Mo. 3248 and 3250 ; Ark. 4493 ; Tex. 3219 ; Cal. 10360 ; Nev. 1045 ; Col. 2184 ; Wash. 44-5 ; Dak. C. Civ. P. 73 ; Civ. C. 178 ; Ida. C. Civ. P. 178; Mon. C. Civ. P. 53; Wy. Civ. C. 21 ; Uta. 1126 ; C. Civ. P. 218 ; S.C. Civ. C. 131 ; Ga. 1950,2934 ; Ala. 3240 ; Miss. 26,88 ; La.D. 1441-2 and 1444; Code 2278; KM. 1873; Ariz. 2108. An indorsement or memorandum of such payment will not, however, be sufficient proof of such payment to take the case out of the statute, if made by, or on behalf of, the payee : Mass. ; Me. ; Vt. ; N.J. ih. 11 ; Ind. 303 ; Mich. ; Wis. ; Col. ; Ga. 2935. And such indorsement must be in the handwriting of the payer to have effect as above : Vt. Causes of action founded on contract are also revived by an adiriission that the debt is un- paid : lo. So, in several, no action can be maintained to charge any person upon any promise made after full age to pay any debt contracted, or, in Missouri, to per- form any contract made, during infancy (except in Maine and South Carolina, debts for necessaries, or to which, in New Jersey, infancy would be no defence ; or, in Maine, debts for real estate of which he has received the title and retains the benefit) unless put in writing and signed (1) by the party to be charged there- with : Me. 111,2 ; N.-T. Frauds, etc. 7 ; Va. 140,1 ; W.Va. 95,1 ; Ky. 22,1 ; Mo. 2516; Ark. 3384; S.C. 2023; Miss 1298; or (2), by some person lawfully authorized : Me., Va., Miss. ; see § 6603. The effect of such new promise, etc., is generally to make the statute run fi-om the time ; but in Illinois, it gives the creditor ten years' further time from the promise. A new promise reviv.'s the original debt or liability, but does uot create a new one : Ga. 2936. After the dissolution of a partnership or in the case of joint-contractors, a new promise by one partner revives tlie debt as to himself, but not as to his co-partners or contractors : " Ga. 2937-8 ; see also § 4113, and in Part IV., Limitations. Note. — " See also the Statute of Limitations in Part IV. § 4148. Other Contracts Required to be in Writing. In Vermont, when the per- formance of a contract is secured by the obligation of a surety, no agreement made between the creditor and the principal debtor for the extension of the time of payment or performance has any effect at law or equity unless made upon a valuable ccmsideration, and in writiug or some note thereof is in writing, signed by such creditor or his agent, and reciting the consideration : Vt. 934 ; see Art. 510. So, no surety is discharged from liability upon a written obligation for the payment of money by reason of notice from the surety to the creditor to sue, unless such notice be in writing and signed by the party giving the same : Pa. Guaranty, 1. See also $ 5110. 464 GENERAL PRINCIPLES. Sales or transfers of ships and vessels are not, in several states, valid nnlcss in writing and signed by the vendor or his agent: Gal. 6135; Ore. Civ. C. 773; Dak. Civ. C. 634 ; see also Arts. 453,456. lu New Jersey, no broker or real-estate agent selling or exchanging land for the owner is entitled to his commission unless the authority fur selling, etc., is put in writing signed by the owner or his authorized agent, and the rate of commission therein stated : N.J. Frauds, 10. In Florida, all contracts appertaining to all agricultural, lumber, rafting, and milling busi- ness must be in writing and fully explained to the parties before two credible witnesses ; and must be in duplicate, one copy to be retained by the employer and the other filed with some judicial officer, with the affidavit of the witnesses ; provided that contracts for service or labor may be made for a less time than thirty days by parol : Fla. 29,3. No person is liable to pay for any newspaper, periodical, or documents, unless he subscribe therefor or order it in writing : Fla. 29,7. § 4149. Fraud. "VMiere a contract which is required by law to be put in writing is pre- vented from it by the fraud of a party thereto, any other party who is thus led to believe that it is in writing, and acts upon such belief to his prejudice, may enforce it against the fraudulent party : Cal. 6623 ; Dak. Civ. C 919. Art. 415. Extinction. § 4150. General Principles. Obligations are extinguished (1) by payment, (2) nova- tion, (.3) voluntary remission, (4) compensation, (5) confusion, (6) by the loss of the thing, (7) by nuUity or rescission, (8) by the effect of the dissolving condition ($ 4232), (9) by pre- scription (see in Part IV.) : La. 2130. § 4151. Release by Operation of LaTV happens when a creditor releases another who is bound jointly with, or primarily to, the debtor: Ga. 2862. So also when the creditor accepts from the debtor a higher security for the same debt, not intended to be collateral thereto : Ga. 2862. Intermarriage of the parties generally releases a debt : Ga. 2863. But not a bond given in contemplation of marriage : Ga. § 4152. Novations : Definition. Novation is the substitution of a new obliga- tion for an existing one : Cal. 6530 ; Dak Civ. C. 863. One simple contract as to the same matter and on no new consideration does not destroy another be- tween the same parties : Ga. 2724. But in Georgia, if new parties are introduced by novation so as to change the person to whom the obligation is due, the original contract is at an end. Novation is made (1) by the substitution of a new obligation between the same parties with intent to extinguish the old ; (2) by the substitution of a new debtor in place of the old, with intent to release the latter ; (3) by the substitution of a new creditor iu place of the old, with intent to transfer the rights of the latter to the former. It is made by contract, and is subject to all the rules concerning contracts in general. When the obligation of a third per- son, or an order upon such person, is accepted in satisfaction, the creditor may rescind such acceptance if the debtor prevents such person fi-om complying with the order or from fulfilling the obligation ; or if at the time it was received such person isinsolvent unknown to the cred- itor, or becomes insolvent before the creditor can with reasonable diligence present the order : Cal. 6.531-3 ; Dak. Civ. C 864-0. § 4153. Louisiana Law of Novation. Novation is a contract, consisting of two stipu- lations: one to extinguish an existing obligation, the other to substitute a new one in its place. To constitute a novation, there must bo, at the time it is made, a valid obligation on which it can operate; if the first obligation, whicl; it is intended to replace by the new one, be void, or if there be no such obligation, then the new obligation is of no effect. EXTINCTIO]^. 465 The pre-existent obligation must be extinguished, otherwise there is no novation ; if it be only modified in some parts, and any stipulation of the original obligation be sufiered to remain, it is no novation. All kinds of legal obligations are subject to novation. Novation takes place in three ways : — 1. When a debtor contracts a new debt to his creditor, which new debt is substituted to the old one, which is extinguished. 2. When a new debtor is substituted to the old one, who is discharged by the creditor. 3. When, by the eifect of a new engagement, a new creditor is substituted to the old one, with regard to whom the debtor is discharged. Novation can be made only by persons capable of contracting ; it is not presumed ; the in- tention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt. Novation by the substitution of a new debtor may take place without the concurrence (^f the former debtor. The delegation, by which a debtor gives to the creditr another debtor who obliges himself towards such creditor, does not operate a novation, unless the creditor has expressly declared that he intends to discharge his debtor who has made the delegation. The creditor who has discharged the debtor by whom a delegation has been made has no recourse against the debtor, if the person delegated becomes insolvent, unless that act contains an express reservation to that purpose, or unless the delegated person was in a state of open failure or insolvency at the time oi the delegation. The mere indication made by a debtor of a person who is to pay in his place does not operate a novation. The same is to be observed of the mere indication made by the creditor of a person who is to receive for him. The privileges and mortgages of the former credit are not transferred to that which is sub- stituted to it, unless the creditor has expressly reserved them. When novation takes place by the substitution of a new debtor, the original privileges and mortgages of the credit cannot be transferred on the property of the new debtor. When novation takes place between the creditor and one of the debtors in solido, the privi- leges and mortgages of the former credit can be reserved only on the property of him who contracts the new debt. By the novation made between the creditor and one of the debtors in solido, the co-debtors are discharged. The novation that takes place with regard to the principal debtor discharges the sureties. Nevertheless, if the creditor has required, in the first case, the accession of the co-debtors, or in the second, that of the sureties, the former credit subsists, if the co-debtors or the sureties refuse to accede to the new arrangement : La. 2185-2193. § 4154. Of Confusion. "When the qualities of debtor and creditor are united in the same person, there arises a confusion of right, which extinguishes the obligation. The confusion which takes place by the concurrence of the qualities of creditor and princi- pal debtor in the same person, avails the sureties of the principal debtor. That which takes place by the concurrence of the qualities of creditor and surety in the same person does not operate the extinction of the principal obligation. That which takes place in the person of the creditor, avails his co-debtors in solido only for the porti(jn in which he was debtor : La. 2217-8. § 4155. Of the Loss of the Thing Due. When the certain and determinate substance which was the object of the obligation is destroyed, is rendered unsalable, or is lost, so that it is absolutely not known to exist, the obligation is extinguished, if the thing has been destroyed or lost, without the fault of the debtor, and before he was in default. Even when the debtor is in default, if he has not taken upon himself fortuitous accidents, the obligation is extinguished, in case the thing might have equally been destroyed in the pos- session of the creditor, if it had been delivered to him. The debtor is bound to prove the fortuitous accident he alleges. In whatever manner a thing stolen may have been destroyed or lost, its loss does not dis- charge the person who carried it off from the obligation of restoring its value. 30 466 GENERAL PRINCIPLES. When the thing is destroyed, rendered unsalable, or lost, without the fault of the dehtor, he is bound, if he has any claim or action for indemnification, on account of that thing, to make over the same to the creditor : La. 2219-2220. Art. 416. Payment. § 4160. To Whom Payment may be Made. Payment of money due to the creditor or his authorized or general agent, or one whom the creditor accredits as his agent, though he may not be so, or to his partner interested with him in the money, is good ; and if such agent re- ceives property other than money as money, the creditor is bound thereby : Ga. 2864. But payment to a nominal party, or a naked trustee, without authority to receive, if made col- lusively and with intention to defeat the true owner, is of no effect : Ga. 2865. § 4161, Payment by Post is at the risk of the sender, unless done by direction, either express or imjilied, of the creditor or his agent : Ga. 2866. § 4162. What is Payment. Bank-bills, if received in payment, are warranted by the payer to be genuine, and that, as far as he knows, the bank is solvent : Ga. 2867. Bank checks and promissory notes are not payment until themselves paid : Ga. ; see Art. 470. Definition. Perfonnance of an obligation for the delivery of money only is called payment : Cal. 6478 ; Dak. Civ. C. 832. By payment is meant not only the delivery of a sum of money, when such is the obligation of the contract, but the performance of that which the parties respectively undertook, whether it be to give or to do. He who is bound to do, or not to do, or to give, is indifferently called the obligor or the debtor ; and he to whom the obligation is made is in like manner without distinction called the obligee or the creditor : La. 2131-2. § 4163. Effect. In an action of debt on a bond or sealed bill or judgment, payment of the money due tliereon nriay be pleaded in bar : N.J. Obligations, 4; Va. 168,1 ; W.Va. 154,1. See $ 4177 and in Part IV. § 4164. Manner. Whenever action is brought on a bond for the payment of money, the penalty being greater than the sum to be paid, it is a bar if the obligor, etc., has paid such sum with interest at any time before suit brought, although not strictly according to the condition : R.I. 212,9 ; N.J. Obligations, 6. Compare $ 4177. § 4165. Stakeholders. A stakeholder of money risked on a wager is bound to repay it to the party depositing at any time he may demand it before it is actually paid over to the winner ; but if paid over to the winner in good faith, and without notice of the depositor's intention to retract, it is a protection : Ga. 2868. § 4166. Appropriation of Payments. When a payment is made by a debtor to a creditor bedding several demands against him, the debtor has the right to direct the claim to which it shall be ap])ropriated ; if he fails to do so, the creditor has such right ; if he also fails to do so, the law directs the application in such manner as is reasonable and equitable, both to the parties and to third persons ; as a general rule, the oldest lien or item will be first paid : Ga. 2869. Where a debtor, under several obligations to another, "does an act by way of performance, in whole or in part, which is equally applicable to two or more of such obligations, such per- formance must be applied as follows : — 1. If, at the time of performance, the intention or desire of the debtor that such per- forinance should be applied to the extincticra of any particular obligation bo manifested to the creditor, it must be so apjdied. 2. If no such application be then made, the creditor, within a reasonable tinie after such performance, may apply it toward the extinction of any obligation, performance of which was due to him from the debtor at the time of such performance ; excei)t that if similar obligations were due to him, both individually and as a trustee, he must, unless otherwise directed by the debtor, apply the performance to the extinction of all such obligations in equal proportion j PAYMENT. 46 and an application once made by the creditor cannot be rescinded without the consent of the debtor. 3. If neither party makes such application within the time prescribed herein, the perform- ance must be applied to the extinction of obligations in the following order ; and if there be more than one obligation of a particular class, to the extinction of all iu that class ratably : — 1. Of interest due at the time of the performance. 2. Of principal due at that time. 3. Of the obligation earliest in date of maturity. 4. Of one not secured by lien or collateral undertaking. 5. Of one thus secured : Cal. 6479 ; Dak. Civ. C. 833. The debtor of several debts has a right to declare, when he makes a payment, what debt he means to discharge. The debtor of a debt, which bears interest or produces rents, cannot, without the consent of the creditor, impute to the reduction of the capital any payment he may make, when there is interest or rent due. Every payment which does not extinguish both the principal and the interest must be im- puted first to the payment of the interest. When the debtor of several debts has accepted a receipt, by which the creditor has imputed what he has received to one of the debts specially, the debtor can no longer require the imputa- tion to be made to a difterent debt, unless there have been fraud or surprise on the part of the creditor. When the receipt bears no imputation, the payment must be imputed to the debt which the debtor had at the time most interest in discharging, of those that are equally due ; otherwise to the debt which has fallen due, though less burdensome than those which are not yet payable. If the debts be of a like nature, the imputation is made lo the debt which has been longest due ; if all things are equal, it is made proportionally : La. 2163-6. So, iu other states, where a payment is made upon any debt, it is to be applied first to the reduction of any interest due, and the balance, if any, to the reduction of the principal: Vt. 1997; Ky. 60,1,5 ; Ark. 4738 ; Ga. 2055; Ala. 2091 ; Miss. 1144. In Vermont, annual interests unpaid bear simple interest from the time they become due to final settlement ; and payments made in any year are applied, first, to liquidate such simple interest accruing on interest ; second, to the annual interest due ; and third, to the principal : Vt. 1998. But in two states, if any payment does not extinguish the interest then due on the debt, no interest shall be calculated on the balance of interest, but only on the principal amount, up to the time of the next payment : Ark., Ga. § 4167. Civil Law of Payment or Performance in General. Every payment pre- supposes a debt ; what has been paid without having been due is subject to be reclaimed. That cannot be reclaimed that has been voluntarily given in discharge of a natural obliga- tion. An obligation may be discharged by any person concerned in it, such as a co-obligor or a surety. The obligation may even be discharged by a third person no way concerned in it, provided that person act in the name and for the discharge of the debtor, or that, if he act in his own name, he be not subrogated to the rights of the creditor. A third person may, for the advantage of the obligor, put the obligee in defoult, by ofiering to perform the obligation on the part of the debtor, even without his knowledge ; but it must be for the advantage of the debtor, and not merely to change the creditor. The obligation of doing cannot be discharged by a third person against the will of the credi- tor, when it is the interest of the latter that it be fulfilled by the debtor himself. But where the act to be done may as well be performed by a third person, who ofiers to do it, as by the obligor, then it may be discharged by this third person, or the creditor may be put in default by his offer to perform it, always under the condition that some advantage may result to the debtor, or that the offer be made at liis request. If the debtor give a thing in payment of his obligation, which he has no right to deliver, it does not discharge his obligation, and the owner of the thing given may reclaim it in the hands of the creditor, unless the obligation lias been discharged by the payment of money, or the deUvery of some of those things which are consumed in the use, and the creditor has used 468 GENERAL PRLNXIPLES. tliem ; in which cases neither the money nor the things consumed can be reclaimed, and the payment will be good. If money, or other stolen property, be given in payment, the payment is not good, and the owner may recover the amount paid. The payment must be made to the creditor, or to some person having a power from him to receive it, or who is authorized by a court, or by law, to receive it for him. Payment made to a person not having power to receive it for the creditor is valid, if the creditor has ratified it, or has profited by it. If the power be revoked, either expressly or by the death of the creditor, payment to the bearer of the power will discharge the debtor, provided he were ignorant of the revocation. A power to receive payment is revoked, as well by such change in the state of the creditor as renders liim incapable himself of legally receiving, as by his death or express revocation ; if he should become interdicted, or (if a woman) she should be married, the powers given before these changes took place are void. A payment made to an attorney-at-law, employed to sue for the payment, will discharge the debtor, although the attorney be not specially empowered to receive the debt. If the authority of him who gave the power ceases, the power is revoked. Thus a power given by a curator, an executor, or a tutor is no longer valid, after he ceases to exercise his trust. Payments in general can legally be made only to the creditor, or some one empowered by him. The debtor, however, is discharged by a payment made in good faith to one who is really not the creditor nor empowered by him, in the following cases : — 1. When the debt is due on an instrument in writing, payable to the bearer, or payable to order, and indorsed, or if not payable to the bearer, if it be assigned in blank, or to bearer, and the payment is made to one in possession of the original evidence of the debt. 2. When the person to whom the payment has been made was at the time in possession of the evidence of the debt, under an order of a competent court, as syndic or trustee of creditors, as curator, executor, heir, or by virtue of any office or other trust, that apparently gives him the power to receive the payment. 3. When the debt accrues for rents or other incidents of the administration of immovable property, or for the sale or expenses relative to movable property, of which the person is in possession by virtue of any of the titles mentioned in the last preceding rule, or where he has been in the uuinterrupted possessiy virtue of their emancipation, authorized to make, they are entitled to no other relief against lesion than if they were of full age. As to all other con- tracts, which they can make only under certain formalities, they are in the same situation with other minors, and may have relief for simple lesion, or prosecute the action of nullity against the contract. Lesion needs not be alleged to invalidate such contracts as are made hy minors, either with- out the intervention of their tutors, or with such intervention, but unattended by the forms prescribed by law. Such contracts, being void by law, may be declared so, either in a suit for nullity or on exception, without any other proof than that of the minority of the party and the want of formality in the act. But in contracts made with minors, when duly authorized, and when all the forms of law have been pursued, on alleging and proving even simple lesion, they will be relieved with the exception of the cases provided for in the next two paragraphs. When all the formalities required by law for the alienation or the partition of the property of minors, or persons interdicted, have been fulfilled, the acts made for those purposes shall have the same force as if they had been executed by persons of full age and sound mind. No lesion whatever, even in the case of minors, can invalidate judicial sales, or sales of an insolvent's property made by syndics or other trustees. Sales of property belonging to succes- sions or minors, directed or authorized by courts, are judicial sales under this provision. When lesion is alleged to invalidate a partition or sale, the party alleging it must first prove the value of the property sold, in the state in which it was at the time of the contract, according to the usual terms of credit given on sales of property of that description. He must then show how much the price given was less than such value ; but if the price given was paid at longer periods than those usually given on such sales, the interest for the time exceeding such usual credit must be deducted from such price ; or, if the price was paid in shorter periods than those of such usual credit, then the interest for the time such payment has fallen short of the usual credit shall be added to the price actually paid ; and from a comparison of the price after these additions or deductions with the estimated value the court shall determine whether according to law applied to the circumstances of the case, there is a lesion sufficient to invalidate the contract. In all questions of lesion the value of that which was the subject of the contract at the time of making it is the rule by which the lesion is to be ascertained. Even in the case of minors, changes in value by subsequent events are not to affect the contract. If a minor should, at the time of the contract, declare himself of full age, it will be no bar to his obtaining relief against lesion. A minor who is a banker, factor, trader, or artisan is not relievable against lesion in con- tracts made for the purpose of his trade or business, nor is he relievable against lesion in any of the stipulations of his marriage contract, if such contract be made with the consent and pursuant to the formalities in such case provided by law. He is not relievable against obligations resulting from offences or quasi offences. A ratification made by a person of full age of any contract made during his minority cures all defects arising as well from the want of the necessary formalities as from the want of a proper consideration. No action for nullity or lesion can be brought after such ratification. Actions for lesion are limited to four years, to date from the time of the contract between the persons of full age, and from the age of majority in contracts of minors. In actions brought for relief against a sale or partition made between persons of full age, or in a like action, brought for lesion only, in a sale made by a minor or on his account, the pur- chaser may elect either to rescind the sale or to have it confirmed on paying the full value. But this election must be made within a period to be designated in an interlocutory decree, determining the true value and the terms on which the payment is to be made. If the purchaser elect to rescind the sale, he must restore the property with all the profits received, or which he might have received from tlie property from the time of bringing suit ; and the seller shall repay the purchase-money which he has received, with interest from the same time, give up and cancel the securities given for such part, if any, as remains unpaid ; and, moreover, pay for such improvements made by the purchaser as add a permanent value to the property, according to their value at the time of the rescission of the sale. The purchaser, on his part, in case of rescission, is accountable for all injuries and dilapida- tions arising from his neglect or fault. The judge, in pronouncing the final decree, shall make compensation between the parties of CIVIL LAW. 487 their respective demands, aud determine what balance shall be paid, and by which of the parties, according to the principles stated in the preceding paragraphs : La. 1862-1880. § 4221. Revocation. Agreements legally entered into have the effect of laws on those who have formed them. They cannt)t be revoked, unless by mutual consent of the parties, or for causes acknowledged by law. They must be performed with good faith. But a contract in which anything is stipulated for the benefit of a third person, who has signified his assent to accept it, cannot be revoked as to the advantage stipulated in his favor without his consent. The obligation of contracts extends not only to what is expressly stipulated, but also to everything that, by law, equity, or custom, is considered as incidental to the particular contract, or necessary to carry it into effect. Contracts, as to their effects upon property or real rights, are of two kinds : — 1. Such as purport a transfer of that which is the object of the contract. 2. Such as only give a temporary right to the enjoyment of it : La. 1901-4. § 4222. The Aleatory Contract is a mutual agreement, of which the effects, with respect both to the advantages aud losses, whether to all the parties or to one or more of them, depend on an uncertain eveut. The law grants no action for the payment of what has been won at gaming or by a bet, except for games tending to promote skill in the use of arms, such as the exercise of the guu and foot, horse aud chariot racing. And as to such games, the judge may reject the demand, when the sum appears to him excessive. In all cases in which the law refuses an action to the winner, it also refuses to suffer the loser to reclaim what he has voluntarily paid, unless there has been, on the part of the winner, fraud, deceit, or swindling : La. 2982-4. § 4223. Of the Action of Nullity or of Rescission of Agreements. In all cases iu which the action of nullity or of rescission of an agreement is not limited to a shorter period by a particular law, that action may be brought within ten years. That time commences in case of violence only from the day on which the violence has ceased; in case of error or deception, from the day on which cither was discovered; and for acts executed by married women not authorized, from the day of the dissolution of the marriage or of the separation. With regard to acts executed by persons under interdiction, the time commences only from the day that the interdicticju is taken off; and with regard to acts executed by minors, only from the day on which they become of age. A simple lesion gives occasion to rescission, in favor of a minor not emancipated, against all sorts of engagements ; and in favor of a minor emancipated, against all engagements exceeding the bounds of his capacity, as is laid down under the title : Of Minors. A minor is not restituable (cannot be relieved against his engagements) on the plea of lesion when it proceeds only from a casual aud unforeseen event. The mere declaration of majority made by a minor is no obstacle to his restitution. A minor carrying on commerce or being an artisan, is not restituable against the engage- ments into which he has entered in the way of his business or art. A minor is not restituable against the engagements stipulated in his marriage contract, if they were entered into with the consent or in the presence of those whose consent is requisite for the validity of his marriage. He is not restituable against the obligations resulting from his offences or quasi offences. He cannot make void the engagement which he had subscribed in his minority when once he has ratified it in his majority, whether that engagement was null in its form, or whether it was only subject to restitution. When minors, persons under interdiction, or married women are admitted in these qualities to the benefit of restitution against their engagements, the reimbursement of what may have been paid, in consequence of those engagements, during minority, interdiction, or marriage, cannot be required of them unless it be proved that what was paid accrued to their benefit. Persons of the age of majority cannot receive the benefit of restitution on account of lesion, except in cases and under conditions specially expressed by law. 488 GENERAL PRINCIPLES. Wheu the formalities required with regard to minors or persons under interdiction, either for the alienation of immovable property, or in a partition of a succession, have been complied with, they are considered as to these acts as though they had executed them, being of full age or before interdiction : La. 2221-2231. Art. 423. Particular Kinds of Contracts. § 4230. Charter-Party. The contract by whicli a ship is let is termed a charter-party. By it the owner may either let the capacity or burden of the ship, continuing the employment of the owner's master, crew, and equipments, or may surrender the entire ship to the charterer, who then provides them himself. The master or a part owner may be a charterer : Cal. 6959 ; Dak. Civ. C. 1127. [Admiralty law is not generally incorporated in this edition, as it is controlled by United States statutes.] § 4231. Government Lands. The laws of Kansas provide that all contracts, written or verbal, made in good faith and without fraud, for the sale or purchase of improvements made on United States government lands shall be valid: Kan. 21,9; Neb. 1,38,1. So, deeds and conveyances of such improvements are valid, as if the grantor held the fee : Kan. 21,10 ; Neb. 1,38,2. Compare also ^ 1300,1420. § 4232. Of Annuities. The contract of annuity is that by which one party delivers to another a sum of money, and agrees not to reclaim it so long as the receiver pays the rent agreed upon. This annuity may be either perpetual or for life. The amount of annuity for life can in no case exceed the double of the conventional interest. The amount of perpetual annuity cannot exceed the conventional interest. Constituted annuity is essentially redeemable. The parties nniy only agree that the same shall not be redeemed prior to a time which cannot exceed ten years, or without having warned the creditor a time before, which they shall limit. The debtor of a constituted annuity may be compelled to redeem the same (1) if he ceases fulfilling his obligations during three years ; (2) if he does not give to the lender the securities promised by the contract. If the debtor should fail, or be in a state of insolvency, the capital of the constituted annuity becomes exigible, but only up to the amount at which it is rated, according to the order of contribution amongst the creditors. The debtor may be compelled by his security to redeem the annuity within the time which lias been fixed in the contract, if any time has been fixed, or after ten years, if no mention be made of the time in the act. The interest of the sums lent and the arrears of constituted and life annuity cannot bear in- terest but from the day a judicial demand of the same has been made by the creditor and when interest is due for at least one whole year : La. 2793-2800. § 4233. Recognizances, Court Contracts, etc. See in Part IV. Art. 424. Obligations in General. § 4240. Definitions. An obligation is a legal duty, by which a person is bound to do or not to do a certain thing : Cal. ; Dak. ; La. 1757. An obligation arises either from (1) the contract of the parties, or (2) the operation of law. An obligation arising from operation of law may be enforced in the manner provided by law, or by civil action or proceeding : Cal. 6427-8 ; Dak. Civ. C. 798-9. Obligations are of three kinds, — imperfect obligations, natural obligations, and civil or perfect obligations. (]) If the duty created by the obligation operates merely on the moral sense, without being enforced by any positive law, such imperfect obligation has no legal operation, and creates no right of action, — as, e. g., gratitude, charity, etc. (2) A natural obligation is one which can- OBLIGATIONS IN GENERAL. 489 not be enforced by action, but is binding on the party in conscience and natural justice. (3) A civil obligation is a legal tie which gives the party with whom it is contracted a right of en- forcing its performance by law : La. 1757. Natural obligations are of four kinds : — 1. Such obligations as the law has rendered invahd for the want of certain forms or for some reason of general policy, but which are not in themselves immoral or unjust. 2. Such as are made by persons having the discretion necessary to enable them to contract, but who are yet rendered iu capable of doing so by some pi'ovision of law. 3. When the action is barred by proscription, a natural obligation still subsists, although the civil obligation is extinguished. 4. There is also a natural obhgation on those who inherit an estate, either under a will or by legal inheritance, to execute the donations or other dispositions which the former owner had made, but which are defective for want of form only. Although natural obligations cannot be enforced by action, they have the following effect : 1. No suit will lie to recover what has been paid or given in compliance with a natural obligation. 2. A natural obligation is a sufficient consideration for a new contract. Civil obligations, in relation to their origin, are of two kinds: — L Such as are created by the operation of law. 2. Such as arise from the consent of the parties who are bound by them, which are called contracts or conventional obligations : La. 1758-1760. The preceding articles of this title have established rules applicable to contracts in general ; this contains an enumeration of such obligations as are usually inserted in different contracts, and the following chapters show how they may be formed, proved, and extinguished. Subse- quent sections enumerate the different kinds of contracts into which the general obligations may enter, and provide rules for their government. Independent of the division of obligations contained above, those that usually enter into par- ticular contracts may be further distinguished by the following classification : those which are strictly personal, or heritable, or real; simple or conditional; limited or unlimited as to the time of performance ; disjunctive or alternative ; in relation to the parties, joint, several, or in solido ; in their nature, divisible or indivisible ; as to their form, penal or not penal : La. 1995-6. § 4241. Interpretation of Obligations. The rules which govern the interpretation of contracts are prescribed by Art. 420. Other obligations are interpreted by the same rules by which statutes of a similar nature are interpreted : Cal. 6429 ; Dak. Civ. C 800. Joint or Several Obligations. An obligation imposed upon several persons, or a right created in favor of several persons, may be : — 1. Joint ; 2. Several ; or, 3. Joint and several. An obligation imposed upon several persons, or a right created in favor of several persons, is presumed to be joint, and not several, except in the special cases mentioned iu the title on the interpretation of contracts. This presumption, in the case of a right, can be overcome only by express words to the contrary. See § 41 1 3. A party to a joint or joint and several obligation, who satisfies more than his share of the claim against all, may require a proportionate contribution from all the parties joiued with him : Cal. 6430-2 ; Dak. Civ. C. 801-3. See Art. 501. Conditional Obligations. (See also Art. 136.) An obligation is conditional, when the rights or duties of any party thereto depend upon the occurrence of an uncertain event. Conditions may be precedent, concurrent, or subsequent. A condition precedent is one which is to be performed before some right dependent thereon accrues, or some act dependent thereon is performed. Conditions concurrent are those which are mutually dependent, and are to be performed at the same time. A condition subsequent is one referring to a future event, upon the happening of whicji the obligation becomes no longer binding upon the other party, if he chooses to avail himself of the condition. 490 GENERAL PRINCIPLES. Before any party to an obligation can require another party to perform any act nndcr it, lie mast fulfil all conditions precedent thereto imposed upon himself; and must be able and offer to fulfil all conditions concurrent so imposed upon liim ou the like fulfilment by the other party, except as provided by the next paragraph. If a party to an obligation gives notice to another, before the latter is in default, that he will not perform the same upon his part, and does not retract such notice before the time at vv'hicli performance upon his part is due, such other party is entitled to enforce the obligation without previously performing or offering to perform any conditions upon his part in favor of the former party. A condition in a contract, the fulfilment of which is impossible or unlawful within the meaning of the article on the object of contracts, or which is repugnant to the nature of the interest created by the contract, is void. A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created : Cal. 6434-6442 ; Dak. Civ. C. 804-812. Simple obligations are such as are not dependent for their execution on any event provided for by the parties, and which are not agreed to become void on the happening of any such event. Conditional obligations are such as are made to depend on an uncertain event. If the obli- gation is not to take effect until the event happen, it is a suspensive condition ; if the obligation takes effect immediately, but is liable to be defeated when the event happens, it is then a resolutory condition. The contract of which the condition forms a part is, like all others, complete by the assent of the parties ; the obligee has a right of which the obligor cannot deprive him ; its exercise is only suspended or may be defeated according to the nature of the condition : La. 2020-1, 2028. The creditor may, before the fulfilment of the condition, perform all acts conservatory of his rights : La. 2042. When the obligation has been contracted on a suspensive condition, the thing which forms the subject of the contract is at the risk of the obligor, until the event which forms the con- dition has happened, subject, however, to the following restrictions and modifications of his responsibility : — If the thing be entirely destroyed, without the fault of the debtor, the obligation is extinguished. If the thing be impaired without the fault of the debtor, it is at the option of the creditor, either to dissolve the obligation, or to require the thing in the state in which it is, without diminution of the price. If the thing be impaired through the fault of the debtor, the creditor has a right to dis- solve the obhgation, or to require the thing in the state in which it is, with damages : La. 2044. A resolutory condition is implied in all commutative contracts, to take effect, in case either of the parties do not comply with his engagements ; in this case the contract is not dissolved of right ; the party complaining of a breach of the contract may either sue for its dissolution with damages, or, if the circumstances of the case permit, demand a specific performance. In all cases the diss(dution of a contract may be demanded by suit or by exception ; and when the resolutory condition is an event not depending on the will of either party, the con- tract is dissolved of right ; but in other cases, it must be sued for, and the party in default may, according to circumstances, have a further time allowed for the performance of the con- dition : La. 2046-7. § 4242. Of Limited and Unlimited Obligations, as to the Time of their Per- formance. The time given or limited for the performance of an obligation is called its term. A term may not only consist of a determinate lapse of time, but also of an event, provided that event be in tlie course of nature certain ; if it be uncertain, it forms a condition. When no term is fixed by the parties for the performance of the obligation, it may be exe- cuted immediately, unless from the nature of the act, a term, either certain or uncertain, must be implied. Thus, an obligatiim to pay money, without any stipulation for time, may be en- forced at the will of the obligee. But a promise to make a crop of sugar is necessarily deferred until the uncertain period when the cane shall be fit to cut. OBLIGATIONS IN GENERAL. 491 The term differs from the condition, inasmuch, as it does not suspend the engagement, but only retards its execution. What is due only at a certain time cannot be demanded before the expiration of the inter- mediate time ; but what has been paid in advance cannot be redemauded. The term is always presumed to be stipulated in favor of the debtor, unless it result from the stipulation, or from circumstances, that it was also agreed upon in favor of the creditor. Wiienever there is a cession of property, either voluntary or forced, all debts due by the in- solvent shall be deemed to be due, although contracted to be paid at a term not yet arrived ; but in such case, a discount must be made of the interest at the highest conventional rate, if none has been agreed by the contract. If a debt be contracted to be paid at a term, and a security be giien for the payment, if, from whatever cause, the security should fail, or be rendered insufficient, the creditor may, before the obligation is due, exact either that good security be given or that the debt be immediately paid. If the contract be to give good security, and a pgrson be afterwards given as such security who fails, the provision of the last preceding paragraph takes effect ; but when security is given of a determinate person, theu there is uo action given on the failure of the surety. Where a term is given or limited for the performance of an obligation, the obligor has until sunset of the last day limited for its performance, to comply with his obligation, unless the object of the contract cannot be done after certain hours of that day. When the contract is to do the act in a certain number of days, or in a certain number of days after the date of the contract, the day of contract is not included in the number of days to be counted, and the obligor has until sunset of the last day of the number enumer- ated for the performance of his contract, with the exception contained in the last preceding paragraph. Where the obligation is not to do a thing without a notice of a certain number of days, or until after so many days, neither the day of the contract nor the day of its performance is calculated. Where the term referred to by the contract consists of one or more months, the parties, if they have not made any other explanation, shall be deemed to have meant months in the order iu which they stand in the calendar after the date of the obligation, and with the number of days such months respectively have. Where the term referred to in the contract consists of one or more years, the calendar year shall be presumed to have been intended : La. 2048-2061. § 4243. Of Conjunctive and Alternative Obligations. When several different things form the object of a contract, it is either conjunctive or alternative. A conjunctive obligation is one in which the several objects in it are connected by a copu- lative, or in any other manner which shows that all of them are severally comprised in the contract. This contract creates as many different obligations as there are different objects ; and the debtor, when he wishes to discharge himself, may force the creditor to receive them separately. But if several things be comprehended in one general name in the contract, it is not conjunctive. The sale of a flock of sheep, or the stock on a farm, are examples of this exception. Where a sum is promised to be paid at different instalments, a conjunctive obligation is created, and the payment may be severally paid or enforced. Rents, payable at fixed periods, come also under this rule. But where the things which form the object of the contract are separated by a disjunctive, then the obligation is altnnative. A promise to deliver a certain thing, or to pay a specified sum of money, is an example of this kind of obligation. The debtor in an alternative obligation is discharged by the delivery of one of the two things that were comprised in the obligation. The option belongs to the debtor, unless it has been expressly granted to the creditor. The debtor may exonerate himself by delivering one of the two things promised, but he cannot force the creditor to receive a part of the one and a part of the other. The obligation is pure and simple, although contracted in an alternative manner, if one of the two things promised could not be the object of the obligation. 492 GENERAL PRINCIPLES. The alternative obligation becomes pure and simple if one of the things promised be destroyed, even through the fault of the debtor, or can no longer be delivered. The price of that thing cannot be offered in its stead. If both the things be destroyed, and the debtor be in fault with regard to one of them, he must pay the price of that one which was destroyed the last. When, in the cases provided for in the preceding paragraph, the option was given by agree- ment to the creditor ; either only one of the things is destroyed ; and then, if it be without the fault of the debtor the creditor must have that one which remains ; if the debtor be in fault, the creditor may demand the thing that remains, or the price of that which is destroyed. Or both the things are destroyed ; and then, if the debtor be in fault with regard to both, or even with regard to one of them alone, the creditor has his option to demand the price of either of them. If both the things be destroyed without the fault of the debtor and before he has delayed the delivery, the obligation becomes extinct. The same principles apply to cases where there are more than two things comprised in the alternative obligation. Where several alternative obligations are divided for their execution by different terms, there the election of one alternative for one of the terms does not oblige the parties to make the same election for the others. If an obligation or testamentary disposition be made to different obligees, or legatees, or heirs, in the alternative, such obligation shall be deemed to proceed from error in wording of the obligation or will, and shall be construed conjunctively : La. 2062-2076. § 4244. Of Obligations Divisible and Indivisible. An obligation is divisible or in- divisible, according as it has for its object either a thing which in its delivery, or a fact which in its execution, is or is not susceptible of division, either material or intellectual. The obligation is indivisible though the thing or the fact which is the object of it be by its nature divisible, if the light in which it is considered in the obligation does not admit of its being partially executed. The stipulation in solido does not give to the obligation the character of indivisibility : La. 2108-2110. If an obligation requires the performance of one of two acts, in the alternative, the party required to perform has the right of selection, unless it is otherwise provided by the terms of the obligation. If the party having the right of selection between alternative acts does not give notice of his selection to the other party within the time, if any, fixed by the obligation for that pur- pose, or, if none is so fixed, before the time at which the obligation ought to be performed, the right of selection passes to the other party. The party having the right of selection between alternative acts must select one of them in its entirety, and cannot select part of one and part of another without the consent of the other party. If one of the alternative acts required by an obligation is such as the law will not enforce, or becomes unlawful or impossible of performance, the obligation is to be interpreted as though the other stood alone : Cal. 6448-6451 : Dak. Civ. C. 813-6. § 4245. Of the Effects of the Divisible Obligation. An obligation susceptible of di- vision must be executed between the creditor and the debtor as though it were indivisible. The divisibility is applicable only with regard to their heirs, who can demand of the debt, or who are liable to pay of it, only the part which they hold or for which they are liable, as rep- resenting the creditor or the debtor. To the principle laid down in the preceding paragraph there is an exception with regard to the heirs of the debtor, — 1. In case the debt be on a mortgage. 2. When it is of a determinate object. 3. When the debt is alternative of things at the option of the creditor, one of which is indivisible. 4. When one of the heirs is alone charged by the title with the execution of the obligation. 5. When it results, either from the nature of the engagement or from the thing which is its object, or from the end proposed by the contract, that it was the intention of the parties that tlie debt should not be partially discharged. OBLIGATIONS IN GENERAL. 493 In the three former cases, the heir who is in possession of the thing due or of the property mortgaged for the debt, may be sued for the whole on the thing due or on the property mort- gaged, but he has recourse against the co-heirs. In the fourth case, the heir is ahine charged with the debt ; and in the fifth case, every one of the heirs may also be sued for the whole ; but the one sued has his recourse against the co- heirs : La. 2111-2. Of the Effects of the Indivisible Obligation. Every one of those who have conjointly con- tracted an indivisible debt is liable to the whole, even though the obligation was not contracted in solido. The case is the same with regard to the heirs of him who has contracted such an ob- ligation. Every heir of the creditor may require the execution of the indivisible obligation. He cannot alone remit the whole of the debt ; he cannot alone receive the price instead of the thing. If one of the heirs has alone remitted the debt, or received the price of the thing, his co-heir cannot demand the indivisible thing without making allowance for the portion of the co-heir who has remitted the debt or has received the price. The heir of the debtor being sued for the whole of the obligation, may ask for a delay to make his co-heirs parties to the suit, unless the debt be of such a nature that it can be dis- charged only by the heir sued, agairfst whom, in that case, judgment may be given, he having recourse for indemnification against his co-heirs: La. 2113-6. § 4246. Transfer of Obligations. The burden of an obligation may be transferred with the Consent of the party entitled to its benefit, but not otherwise, except as below provided. A right arising out of an obligation is the property of the person to whom it is due, and may be transferred as such : Cal. 6457-8 ; Dak. Civ. C. 817. § 4247. Of Strictly Personal, Heritable, and Real Obligations. An obligation is strictly personal when none but the obligee can enforce the performance or when it can be enforced only against the obligor. It is hei'itable when the heirs and assigns of the one party may enforce the performance against the heirs of the other. It is real when it is attached to immovable property, and passes with it into whatever hands it may come without making the third possessor personally responsible. An obligation may be personal as to the obligee and heritable as to the obligor, and it may in like manner be heritable as to the obligee and personal as to the obligor. Every obligation shall be deemed to be heritable as to both parties, unless the contrary be specially expressed or necessarily implied from the nature of the contract. The obligation shall be presumed to be personal on the part of the obligor whenever in a contract to do he undertakes to perform anything that requires his personal skill or attention. In this case, if that which was to be done was not solely and exclusively for the use or gratifi- cation of the obligee, the obligation, although personal as to the obligor, will be heritable against the heirs of the obligee for the equivalent to be paid or given for that which was to be done. The obligation shall be presumed to be personal as to the obligee in a contract to do or to give, when that which was to be done or given was exclusively for the personal gratification of the obligee, and could produce no benefit to his heirs. In case of obligations purely personal as to the obligor, if he have received an equivalent that can be appreciated in money as a consideration, but dies before performance of his obliga- tion, his heirs may be obliged to restore it or its value. In like manner, if the obligation be purely personal as to the obligee who dies before per- formance, his heirs may recover from the obligor the value of any equivalent he may have received. An obligation to pay an annuity to a certain person during the life of the obligor is personal as to both, and is extinguished by the death of either. A merely personal obligation to do imposed by testament as the condition on which a legacy is to take effect, is void if the legatee die before performance or before he has been put in de- fault ; but the legacy will take efi"ect. But if what is to be done be a thing that can as well be done by the heirs of the legatee as by him, the obligation shall be heritable, and they must perform it before the legacy can 494 GENERAL PRINCIPLES. take effect. The provisions of this and the preceding article relate only to testamentary dispositions. All contracts for the hire of labor, skill, or industry, without any distinction, whether they can be as well performed by any other as by the obligor, unless there be some special agree- ment to the contrary, are considered as personal on the part of the obligor, but heritable on the part of the obligee. Contracts of mandate and partnership are mutually personal : La. 1997-2007. § 4248. Of the Obligation of Giving. The term to give, in this division of obligations, is applied only to corporeal objects that may be actually delivered from one to another ; and it includes the payment of money as well as the delivery of any other article. A covenant re- specting an incorporeal right comes under the definition of contracts to do or not to do, because some act besides that of delivery is necessary for the transfer of such rights. A contract for the delivery of a promissory note payable to bearer or payable to order, and already indorsed, or any other negotiable paper of the same nature, also indorsed, or trans- ferable by delivery only, comes under the description of a contract to give ; but a contract to transfer a note to order not indorsed, or any other debt that requires an act of transfer, is an obligation to do. The obligation of giving includes that of delivering the thing, and of keeping it safe until the delivery of it ; the person who contracts to give being liable, on failure, to pay damages to the person with whom he has contracted. The obligation of carefully keeping the thing, whether the object of the contract be solely the utility of one of the parties, or whether its object be their common utility, subjects the per- son who has the thing in his keeping to take all the care of it that could be expected from a jtrudent administrator. This obligation is more or less extended with regard to certain contracts, the effects of which, in this respect, are explained under their respective titles. If the obligation be to deliver an object which is particularly specified, it is perfect by the mere consent of the parties. It renders the creditor the owner, and although it be not delivered to him, puts the thing at his risk from the date of the obligation, if the contract is one of those that purport a transfer. But if a debtor of a thing is in default for not having made the delivery, it is at his risk from the time of his default. The debtor may be put in default in three different ways : by the term of the contract, by the act of the creditor, or by the operation of law : — 1. By the term of the contract, when it specially provides that the party failing to comply shall be deemed to be in default by the mere act of liis failure. 2. By the act of the party, when at or after the time stipulated for the performance he de- mands that it shall be carried into effect, which demand may be made either by the commence- ment of a suit, by a demand in writing, by a protest made by a notary public, or by a verbal requisition made in the presence of two witnesses. 3. By the operation of law. This takes place in cases where the breach of the con- tract alone is by law declared to be equivalent to a default. The law having declared that the neglect to return a thing loaned for use <*'«; Ala. So, personal notice to the owner by mail or service : N.Y.* ib. 2 ; Wis. 1639 ; Tenn. 2790; Ore.; Ariz. (B) When the owner and consignee is unknown or cannot be found, (1) upon order of court : Pa. ib. 7 ; Liens, 2 ; lo. ; Del. ib. 2 ; Miss. ; (2) the time of sale as in A : Mass. ; Vt. ; N.J. ; <* 0. ; Wis. 1640 ; lo. ; Minn. ; Tenn. ; Ore. ; Nev. ; (3) when the goods re- main unclaimed for six months : Ct. ; N.Y. ;<' N.J.'^--^' ^ Railroads, 45 ; 111. ; N.C. ; ^ Mo. •/ Cal.<^6862; Dak. ; <^' <*- « Ga. 2084a; (4) for three months: Ind. ; Mich. 2077; Neb. 1, 92,3; Md. ; Tex.; Col. 3433; Fla. 196,1 ; Ariz. 3661 ; (5) for one year: R.I. 139.5 ; N.Y.;^ Wis. 1638; Minn. 19,13,25; Ore. 18,17; Nev.*^ 148; S.C. ; (6) for sixty days; Va.; Mo. ; Cal. 3153 ; (7) for two years : N.Y." There must be notice of the sale, either (1) by publication : Vt. 40G5 ; R.I. ; Ct. ; N.Y.^'"-^ 1879,530,2; N.J. ; ■=• ''••^' " Ind. ; 111.; Mich.; Wis.;* lo. 2179; Minn. 19,14 and 25; Kan. 58,6; Neb.; Va. ; N.C. ;» Tenn.; Mo.; Tex. 236; Cal.; Ore.; Nev.; Col. ; ''■ <= Wash. ; Dak. ; ^' ''^ " S.C. ; Ga. ; Ala. ; Fla. ; Ariz. ; (2) by posting : N.J. ; ^^-^ Ind. 2901 ; lo. ; Minn. 19,17 ; Md. ; Mo. ■/ Tex. ; Wash. 3258 ; Fla. ; (3) as the court order : Pa. ; (4) as in A : Mass., Dak.=' '*' * (C) Perishable goods may be sold (1) immediately upon order of court : N.J. ;'''•'' Pa.; Wis. ;'^ Del. ib. 2 ; Ore. 18,27; Wash.'^ 3264; Miss. ; (2) immediately, and with- out any order of court : Mass. 96,5 ; R.l.'' 139,6; Ct. 18.9,1 and 4 ; N.Y. 1854,282, 11 ; 1857,444,4 ; N.Y." ib. 2 ; N.J.*^ ib. 52 ; 0. 3229 ; 111. 141,2 ; lo. 2180 ; Minn.^ 19. 23; Kan. 23,145; 58,4; Tex. 289; Nev.''-'' 1875,42,4; Col.'^' ' 3437; Wash. 1981 ; Dak.'^-'*'' 12286; Ga.'' 20846; Ariz.<^ 3664 ; (3) if not claimed in thirty days: Wis., Minn., Kan., Ore., Wash. ; (4) if not claimed in ten days : Fla. ; (5) in five days : Ind. 2903 ; (6) in sixty days : Ala. 2140. And no notice, as in A and B, is necessary, except that personal notice must be given or mailed to the consignee or owner, if known : Mass., R.I., N.J.,<* To., Col.,'^'« Dak.,*'-''* Ga. But in others, ten daj-s' notice is required (except when subject to immediate decay: Minn., Ore.) : Minn., Ore., Wash. And in one, five days' notice, as in A, is always required : Tex. Public warehousemen may sell damaged grain which has been stored for a year or more, and become damaged while stored, for" account of parties having claim thereto : Kan. 23,156. 516 BAILMENTS. In others, there must be notice by publication : Ct.,*^- « N.Y., N.J./ Kan., Ga., Fla., Ariz. ; twenty-four hours' notice to the owner : Ga., Ariz. ; and by posting : N.J.-^ Live-stock, remaining unclaimed (for forty -eight hours after arrival : Tex.), may be sold by the carrier upon giving five days' notice : Tex. 288 ; Ga. Notes. — ° Notice by publication is all that is necessary in the case of railways. ^ When the owner cannot be found and his address is unknown. ' In the case of innkeepers only, ^ Of carriers, etc., under § 4354, (1). * Or warehousemen. -^ Of railways. " Of express companies. '^ When sub- ject to immediate decay. § 4356. Effect. The proceeds of such sale are to be applied first to the satisfaction of the charges legally incurred on the goods and the expenses of the process : Mass. 96, 3 and 9 ; Vt. 4066 ; R.I. ; Ct. 18,9,1-2 ; N.Y. ; '' ''•>"• » N-J.-^- ''■^- <> Railroads, 46 and 50 Pa. ih. 8; O. 3225; Ind. 2901; Mich. 2082; Wis. 1644; To. 2181; Minn. 19,19 Kan. 58,8; Neb. 1,92,8; Md. 67,20,1 ; Del. ih. 3 ; Va. ; N.C." 2789; Tenn. 2791 Mo. 6278; Tex. 236; Cal. 3153,6862; Ore. 18,23; Nev. 148; 1875,42,5; Col.*^-* 3433; Wash. 1983,3260; Dak.'* 1228a; Uta.'^ 1191 ; Ga. 2084a; Miss. 1055; Fla. 196,2 ; Ariz. 3665; S.C. 1685 ; Ala. 2142. See also § 4354 for citations. The remainder is paid (1) to the state treasurer (N.Y. 1857,444), who holds it five years subject To the claim of the owner or his representatives, and then pays it into the state treasury : Mass.; R.I. 139,7. So, in Vermont; but he holds it only two years subject to such claim: Vt. 4066-7. So, in others, (2) substituting county treasurer (N.Y."^ 1879,530,4-5) ; and if unclaimed during such period, it belongs to the county : N.J.'* i&. 48; Railroads,^ 44 (two years); Mich. 2085-6; Wis. 1645; lo 2181-2 (ten years) ; Minn. 19,20-22 ; Kan.; Neb. 1,92,9 and 11 ; Mo. 6279 ; Cal. 3154 ; Ore. 18,26 and 25 ; Wash. 4362-3 ; 148 ; Nev. 1875, 42,6 (one year) ; so, Col. 3434; so. Miss. 1055; so, Fla. 196,2-3; Ariz, (six months). But in the case of railways (or vessels : Mass.), the surplus proceeds may always be claimed by the owner ; until claimed they belong to the railway company : Mass. 96,7 ; Minn.-^ 19,26. And in the case of express companies, the proceeds are paid to the owner if he make claim within three years; otherwise, to the state treasurer: Mass. ; Ct. 18,9,5-6 (five years). So, of all carriers, etc. : Va. 61,34. (3) The surplus is paid to the ovmer if he make claim (a) within sixty days of the sale : Cal. ; O) within thirty days : N.J. ; <^ (-y) within five years after the sale : N.Y.^- ^ ih.'S; Ind. ; Tex.; (5) within one year: Ct. ; N.J. ;» 0.; Mo. -^ 803; Cab ; <^ Col. ;^-« (e) within seven years : N.Y. ; '^ (0 two years : N.J. ; '^ (jj) at any time, on demand : N. Y. ; *^'-^ Pa.* Liens, 3 ; Minn./ 19,26; Kan.; Md. ; Del.; N.C. ; » Mo.; Tenn.; Dak.;'' Uta ;'« S.C; Ala. ; (^) six months : R.I., Nev. ; '^ (t) within a year after payment to county treasurer : Nev. '^' « (4) It is deposited in a bank in the names of the consignor and consignee, and can only be drawn out by consent of both : Ga. 2084c. (5) It is paid to the overseers of the poor : N.Y.''- *• ^ ih. 4; N.J."^ (6) It is paid to the state treasurer: N.J.,'' 0., Ind., Mich.; and may be claimed from him at any time within five years : 0. 3230. Notes. — See § 4355, notes. § 4357. Stoppage in Transitu. (See also § 4.576.) This right exists whenever the vendor in a sale on credit seeks to resume the possession of goods while they are in the bands of a can'ier or middle-man, in their transit to the vendee or consignee, on his becoming insol- vent : Ga. 2075. The right continues until the vendee obtains actual possession of the goods : Ga. The carrier cannot dispute the title of the person delivering the goods to him by setting up nn adverse title in himself, or a title in third persons which is not being enforced against him : Ga. 2076. § 4358. Effect of a stoppage in transitu is to relieve the carrier from his obligation to deliver : Ga. 2074. And thenceforward he is only bound to ordinary diligence in the care of the goods : Ga. § 4359. Bills of Lading. Tn several states, no master or atijent of a vessel, nor any railroad, or other person, shall sign or give any bill of lading, receipt, or other WAREHOUSEMEN. 517 voucher for merchandise, unless actually shipped or received for shipment : N.Y. 1858,326,5 ; N.J. 1881,90,5 ; Md. 35,16 ; Mo. 557 ; Ala. 1881,108,5 ; La. D. 2481. So, in many other states where it is made a penal offence. See in Part V. And no property can be delivered except on surrender and cancellation of the bill of lading: N.Y. 1859,353; Mo. 559; see also § 4373. In several, all the similar provisions of Art. 437 apply equally to the case of carriers or bills of lading : N.Y. 1859,353; N.J. ib. 6 ; Pa. Bailees, 1 ; Mo. 561 ; La. D. 2484. In some states, bills of lading are declared negotiable instruments : Md. 35,12 ; Mo. 558. Compare §§ 4372,4701. Any condition written on or attached to the bill to the contrary notwithstanding: Mo. ; La. D. 2486. And so, in Maryland, full title to the property and all rights incident thereto shall vest in each holder for value hona fide, unaffected by the rights or equities between prior holders of which he had no notice. Unless the words non-negotiable be written on the face of the bill : Md. ; Mo. 5.59. They may be transferred by indorsement of the bill and delivery of the property ; and the transferee is deemed the owner so far as to give validity to any lien or pledge or transfer made or created on the faith thereof : Mo. (See § 4343.) § 4360. Discrimination. The laws of two states provide that no common carrier shall discriminate against any person or corporation or other carrier: Mass. 73,1; R.I. 139,1 ; S.C. 1335. See also Railroads, etc., in Part III. § 4361. Insurance. By the law of Pennsylvania, carriers may insure the lives and persons of passengers, and issue tickets to that effect : Pa. Common Carriers, 10. See in Part III. Art. 437. Warehousemen. § 4370. Definitions. A private warehouseman (termed class B in Indiana, and class C in Illinois) is one who keeps a warehouse where each person's grain is kept apart, stored in a separate bin ; a puhlic warehouse (class A, in Indiana ; A and B, in Illinois) is where the grain is stored in bulk or mixed : Ind. 6526 ; 111. 114,120-1 ; Minn. 1885,144,1 ; Kan. 23,149 ; Ky. 1880, Apr. 28, § 1. A public warehouseman is auy one who advertises or offers to receive the merchan- dise of other parties on storage for hire : Me. 31,8 ; Ct. 1878,40,1 ; Tenn. 2792. Every private warehouseman must keep the grain of every person separate and distinct from other grain of like nature, and upon surrender of the warehouse receipt shall deliver the identical grain described therein : Kan. 23,151. No warehouseman may mix different qualities or grades of produce together : Minn. ih. 5 and 14 ; Ky. ib. § 14 ; Ore. 1885, p. 62, § 3. But public warehousemen may store grain in bulk or mix it : Kan. 23,152. The provisions of this article apply to grain stored in elevators and petroleum in barrels ; and the owner of the elevator, etc., is a warehouseman :. Pa. Bailees, 6. Public warehousemen must receive all grain offered for storage without discrimination : Ind. 6527; 111. 120,125; Ky. ib. $o; Minn. ib. 5. The same is frequently required by penal statutes. § 4371. Receipts to be Genuine. (A) In many states, no warehouseman (and in New York, New Jersey, Pennsylvania, Kansas, Missouri, California, Wyoming, Louisiana, no wharfinger; in New York, New Jersey, Pennsylvania, no public or private inspector; and in Connecticut, New York, New Jersey, Pennsylvania, Kansas, Maryland, Missouri, California, Wyoming, Louisiana, no custodian of property or other person) shall issue any receipt, acceptance of an order, or other voucher, for any produce, goods, etc., to any owner or claimant, 518 BAILMENTS. unless such goods have actually been received by the warehouseman and are under his control at the time: Ct. 1878,40,2; 1883,97; N.Y. 1858,326,1; N.J. 1881,90,1 ; Pa. Bailees, 2 ; Ind. 6530,6544 ; 111. 114,128 ; lo. 2172 ; Minn. 124,14; 1885,144,7; Kan. 23,146 and 153; Md. 35,16; Ky. ih. § 7; Tenn. 2793; Mo. 553; Cal. 6855; Vol. 3, p. 236, § 1; Ore. 1885, p. 61, § 2 ; Wy. 35,144 ; Ala. 1881,108,1 ; La. D. 2477. [Falsely making or altering a warehouse receipt is generally a criminal offence in all states. See in Part V.] Nor, in many, can he issue such receipt, etc., as security for money loaned unless the goods are actually in his custody as above : Ct. ih. 3 ; N.Y. ih. 2 ; N.J. ih. 2 ; Ind. 6545 ; Kan. 23,147 ; Mo. 554; Cal. ih.^2; Wy. 35,145 ; Ala. ih. 2 ; La. D. 2478. Nor, in many, any second receipt while a first is outstanding uncancelled, except as a duplicate: Ct. ih. 4; N.Y. i&. 3; N.J. ih. 3; Pa. ih. 3; Ind. 6528,6546; 111. 114,126; lo. 2174; Minn. ih. 6; Kan. 23,153; Md. 35,17; Ky. ih. § 6 ; Tenn. 2794 ; Mo. 555 ; Cal. ih. § 3 ; Ore. ; Wy. 35,146 ; Ala. ih. 3 ; La. 1). 2479. In such case the word duplicate must be written on the face of the receipt : Ct., N.Y., N.J., Ind., 111., Minn., Kan., Ky., Tenn., Mo., Ore., Ala. Nor, in many, can he sell, incumber, or remove such goods without the written consent of the person holding the receipt: Mass. 72,10; Ct. ih. 5 ; N.Y. ih. 4; N.J. ih. 4; Pa. ih. 4; Ind. 6547 ; 111. 38,125 ; lo. 2175; Kan. 23,148 ; Mo. 556 ; Cal. ih. § 4; Ore. 1885, p. 62, § 4; Wy. 35,147; Ala. ih.4.; La. D. 2480. See also in Part V., as it is frequently a criminal offence. Nor can he issue a receipt for greater amount than is actually delivered : Ind., 111., Minn., Kan., Ky. Nor any receipt be reissued upon which grain has once been delivered : Ind., 111., Kan., Ky. So, in Iowa, such property must remain in store until otherwise ordered by the holder of the receipt or voucher, subject only to the condition thereof and the contract between the parties as to the time of remaining in store : Jo. 2173. Every warehouseman, public or private, must give the owner a receipt setting forth the quantity, kind, and grade of grain stored ; and such receipt is conclusive as against the warehouseman: Ind. 6528; 111. 114,126 ; Minn. ih. 6 ; Kan. 23, 150 ; Ky. ; Ore. 1885, p. 61, § 1; Ala. 2139. (B) So, in Maryland, every warehouse receipt (or bill of lading) issued by any person or corporation, or his or its agent duly authorized, for goods actually received for storage (or trans- portation, if a bill of lading) is conclu.sive evidence in the hands of any hona-fide holder for value who was without actual notice to the conti'ary, that all of the goods, etc., in said instru- ment mentioned, had been actually received by and were actually in the custody of such ware- houseman at the time of issuing said instrument, according to the tenor thereof aud ^for the purposes and effects therein stipulated or provided, notwithstanding that the fact may be other- wise, or that the agent may have had no authority to issue any such instrument except for goods actually received and in possession at the time : Md. .35,13. And in others, all warehouse recei[)ts, certificates, and other evidences of the deposit of property issued by any warehouseman, wharfinger, or other person engaged in storing property for others, arc, in the hands of the holder thereof, presumptive evidence of title to said property, both in law and equity : lo. 217J ; Minn. 124,14. Transgression of the provision of this article is, in most states, made a penal offence, or a felony. See Part V. § 4372. Warehouse Receipts may, in most states, be transferred by indorse- ment: Ct. ih. 6 ; N.Y. 1858,326,6 ; N.J. ih. 6 ; Pa. Bailees, 1 ; Ind. 6537 ; 111. 114, 142 ; Wis." 4194 ; Minn. 1885,144,9 ; Kan.* 23,154 ; Neb. 1,92,13 ; Mo. 559 ; Cal. ih. § 5; La. D. 2482 ; Ala. 1881,108,6. WAREHOUSEMEN. 519 So, in others, they are declared negotiable instruments : Mass. 72,5 ; Pa. ; Ind. 6543; Wis.* 1676; Md. 35,12 ; Tenn. 2796; Mo. 558; Ore. 1885, p. 62, § 5 ; La.'' D. 2485. And in two states, full title to the property and all rights incident thereto shall vest in each bona-fide holder for value without notice, unaffected by the equities existing between previous parties : Md., Tenn. So, in two, the title to goods stored in a public warehouse, passes to a purchaser or pledgee by the indorsement (but not in blank : Me.) and delivery to him of the receipt, signed by the perstm to whom such receipt was originally given, or an indorsee : Mass. 72,6 ; Me. 31,4. And such indorsement must, to be valid against creditors of the person, be recorded on the books of the warehouseman : Me. 31,6. But in others such transferee is taken to be owner only so far as to give validity to any pledge, lien, or transfer by him created : Ct., N.Y., N.J., Pa., Wis., Mo., Ala., La. But no property shall be delivered except on surrender and cancellation of original receipt, or indorsement thereon for partial delivery : N.Y. ; N.J. ; Pa. ; Ind. 6529 ; Wis. ; Minn. ; Ala. ; La. See also § 4373. And warehouse receipts are exempt from the provision of this section if non-negoti- able or other words of similar effect be written thereon : Ct. ; N.Y. ; N.J. ; Pa. ; Wis. ; Minn. 124,17 ; Md. ; Tenn. 2797 ; Mo. ; Cal. ib. § 8 ; Ala. ; La. And every such indorsement is deemed a waiTanty of title by the indorser : Ind. In Maryland, the principles of §§ 4359,4370,4371, apply to every acceptance of an order and every other voucher whatever for any goods, etc., as on storage or deposit with any wharf- inger, warehouseman, or other person, which does not on its face provide that it shall not be negotiable : Md. ih. 14. Notes. — « They may be transferred by delivery, with or without indorsement. * " To the same extent and in the same manner as bills of exchange or promissory notes." § 4373. Delivery. No person or corporation having issued any such receipt for goods in his custody may, in many states, part with or deliver them, except to the holder of such receipt or other instrument, or upon his order, and the presentation of the instrument with his indorsement : Ct. ; N.Y. ; N.J. ; Pa. ih. 4 ; Ind. 6531; 111 114,130; Minn. 124,18; Md. 35,17; Ky. ih. § 9; Mo. 559; Cal. ih. § 7 ; Ore. 1885, p. 62, § 6. So, in several, he cannot remove such goods from store (except to preserve from fire, etc.), without the return and cancellation of the receipt : 111. 114,143; Ky. ; Tenn. 2795 ; Mo. And they are required thereupon to cancel and destroy said instrument, or, in case of partial delivery of the goods, to indorse such fact thereupon, with the names of the persons to whom the delivery was made, and the quantity delivered : Pa. ib. 1 ; Ind. ; 111. 114,127 ; Kan. 23,153 ; Md. ; Cal. ib. § 6 ; Ala. ib 8. See also § 4372. This section does not apply to property replevied or removed by operation of law : Ct. ib. 8 ; N.Y. ih. 8 ; N.J. ib. 8 ; Pa. Bailees, 8 ; Mo. 562 ; La. D. 2487 ; Ala. § 4374. Elevator Receipts vest title in the person to whom they are issued and subse- quent bona-fide holders : Md. 35,19. § 4375. ■Warehouseman's Lien. Any person keeping or storing personal property has a common lien (Art. 447) upon it (1) for his reasonable charges : N.Y. 1885,526 ; Minn. 90,17; Mo. 6277 ; Ore. 1878, p. 102, § 2; Col. 2119; Mon. G. L. 1179 ; Wy. p. 462, § 2; Uta.M884,18. (2) So, commission mei'chants and warehousemen have a lien for advances made by them on the goods : Mo. 6281 ; Col. 2119 and 3436. Compare § 4354. No warehouseman may pledge, hypothecate, or negotiate any loan upon any such receipt to a greater amount than he has actually advanced thereon : Tenn. 2798 ; compare ^ 4384. Note. — « Only where there has been a special contract for the charges, in the noted states. 520 BAILMENTS. § 4376. Storage a Bailment. When grain is delivered for storage it is deemed a bail- ment, not a sale, though mixed with other grain or removed from the warehouse : Minn. 124,13. Such grain cannot be seized in an action against the bailee : Minn. So, where grain or other property is stored in a public warehouse in such a manner that different lots or parcels are mixed together so that the identity thereof cannot be accurately pre- served, the warehouseman's receipt for any portion of such grain, etc., is deemed a valid title to so much thereof as is designated in the receipt, without regard to any separation or identifica- tion : Mass. 72,7 ; Me. 31,9. Compare ^ 4371. § 4377. Agency. Every note, certificate, or warehouse receipt signed by the agent of any person under a general or special authority, shaU bind such person, and be negotiable, as if he had signed it : Wis. 1677. § 4378. Warehouseman's Liability. No public or private warehouseman (class A or B ; see § 4370) is (1) liable for loss by fire, if he exercised reasonable care : Ind. 6532; lU. 114,134; Minn. 1885,144,14; Ky. ib. § 13 ; (2) nor for the damage caused by heating of grain, if properly stored : Ind., 111., Minn., Ky. A warehouseman is a depositary for hire, bound for ordinary diligence: Ga. 2112. A whai-finger is also a depositary for hire, and subject to the same principles as in this article provided : Cal. V. 3, p. 237, $ 9 ; Ga. 2113. No warehouseman can limit his legal liability by language inserted in the receipt : lU. 114,129 ; Minn. ib. 8 ; Ky. lb. § 8; Teun. 2796 ; La. D. 2486. Art. 438. Factors and Consignees. § 4380. Shipper deemed Owner. In a few states, every person in whose name merchandise is shipped (for sale, by a person in the lawful possession thereof at the time of shipment, in Massachusetts) is deemed the true owner so far as to entitle the consignee for a lien thereon for moneys advanced or securities given to the shipper for or on account of such consignment: Mass. 71,2; Me. 31,1; R.I. 136,1; N.Y. 1830, 179,1 ; 0. 3214 ; Wis. 3345 ; Md. 34,1. Unless the consignee had notice by bill of lading or otherwise that the shipper was not the actual and bona-Jide ov/uer thereof : Mass.; R.I. ; N.Y. ib.2; 0. 3215; Wis.; Md. 34,2. When a person intrusted with merchandise, and having authority to sell or consign the same, ships or otherwise transmits or delivers it to any other person, such person has a lien thereon for any money or merchandise advanced or negotiable security given by him on the faith of such consignment to or for the use of the person in whose name the consignment or de- livery was made, and for any money, negotiable security, or merchandise received for the use of such consignee by the person in whose name the consignment or delivery was made, (1) if such consignee had at the time of such advance or receipt probable cause to believe that the person in whose name the merchandise was shipped, transniitted, or delivered was the actual owner thereof, or had a legal interest therein to the amount of said lien : Mass. 71,3; (2) un- less such consignee had notice, by bill of lading or otherwise, at such time that the person was not the actual owner : Pa. Factors, 1,2. § 4381. Consignee deemed Owner. And in many states, every factor, agent (or other person, in ]\Iaryland), intrusted with the bill of lading, custom-house permit, or warehouseman's receipt, or (in Massachusetts, Maine, Ehode Island, New York, Pennsylvania, Ohio, Wisconsin, and Kentucky) who has possession of any merchandise for the purpose of sale, or (in New York, Ohio, and Wisconsin) as a security for advances to be made or obtained thereon, without documentary evidence of title, (a) is deemed the true owner thereof so far as to give validity to any contract made by him with any third person for the sale, pledge (except in Massachusetts, Maine, and Kentucky), or disposition of such merchandise, or FACTORS AND CONSIGNEES. 521 for any money advanced or negotiable instrument, or other written obligation, given by such person upon the faith thereof, and notwithstanding (except in Maine, Ehode Island, New York, Pennsylvania, Ohio, Maryland, and Kentucky) that such person has notice that the consignee is an agent or factor: Mass. 71,1 and 4; Me. 31,1; E.I. 136,2; N.Y. 1830,179,3; Pa. Factors,"!; 0. 3216; Md.« 34,3 ; Ky. 1880, May 5, §§ 1 and 6. But such loan or advance must be made in good faith, and (1) with probable cause to be- lieve that the agent had authority to make such loan or pledge, and was not acting fraudulently against the owner : Mass.; (2) with no notice that such agent, etc., was not the owner: R.I. (B) In some, such factor, etc., etc., has a lien upon the property for all such advances, liability incuiTed, commissions or other moneys due him for services as such factor, etc. : Wis. 3346 j Mo. 6281 ; compare % 4375. And in two states, any person may contract with any agent or factor intrusted with the goods, or the consignee, for the purchase thereof, and may receive the same, and pay for them ; and such contract or payment shall be good agaiust the owner, if made in the usual course of business, and the person had no notice that the agent was uot authorized to sell the goods and receive the purchase-money, notwithstanding he had notice that the other was an agent or factor : R.I. 137,4 ; Md. 34,4. Note. — " See, however, § 4385. § 4332. Precedent Debts. But any person who accepts such merchandise or document in deposit or pledge for any antecedent debt due to him from such factor (with notice that he is such factor only : Pa.) acquires no right in the goods other than (1) that possessed by the agent or factor against the owner at the time of such deposit : Mass. 71,5; Me. 31,2; R.I. 136,3; N.Y. 1830, 179,4; Pa. Factors, 4; 0. 3217; Md. 34,5 ; Ky. 1880, May 5, § 2 ; (2) or than the value of any security surrendered at the time of transfei', whichever may be greatest : Ky. If he had such notice that the agent had uo authority, he acquires no interest in the goods : Pa. ; Md. 34,6 ; Ky. 1880, May 5, % 3. § 4383. Rights of Owner. The true owner may, notvsrithstanding §§ 4380, 4381, demand and receive such goods from the third person upon repayment of the money advanced or restoration of the security given by such third person, or price paid, or upon paying the value of the goods ; and from the factor upon satisfying his agent's lien for expenses, etc., and may also recover any balance re- maining in the hands of the factor or third person from the proceeds of a sale of the goods : Mass. 71,6 ; Me. 31,3 ; E.I. 136,5 ; N.Y. 1830,179,5 ; Pa. Factors, 5 ; 0. 3218; Md. 34,10 and 13 ; Ky. 1880, May 5, § 5. So, he may recover the goods from the factor or his assignee previous to any pledge or sale thereof (in case of insolvency : Mass.) : Mass. ; R.I. ; Pa. ; Md. ih. 9. And the owner redeeming or paying for such goods as in this section provided will be held to have discharged his debt to the factor jiro tanto (in case of the factor's insolvency, in Maryland) : R.I. ; Md. 34,11. So, when the agent has made a contract for the sale of the goods, or has delivered them in pursuance of any contract to any third person (and, in Maryland, becomes insolvent before pay- ment made), the owner may demand the purchase-money of such third person ; R.I. ; Md. 34,7. And he will receive it free of any set-off, except such as arose (1) in course of dealing with said agent acting as such for the same principal : Md. ; or (2) from previous advances of money, materials, or labor for the use of said principal : Md. ; (3) he is subject to the set-offs existing on the part of the third person as against the fiictor, etc. : R.I. And in no case can there be a set-off of a debt due to said fsictor, unless the third person re- ceived it as a pledge without knowledge that the factor had no authority to sell or deposit the same : Md. ib. 8. § 4384. Duties of Factors, etc. Nothing above contained authorizes a common carrier, warehouseman, or other person to whom goods are committed for transporta- 522 BAILMENTS. tion or storage only to sell or hypothecate the same : E.I. 136,3; N.Y. 1830,179,6; 0. 3219 ; Ky. 1880, May 5, § 4; La. D. 2488. Compare § 4375. And such action is commonly declared a felony or misdemeanor ; see Part V. A factor is au agent, as defined above. In addition to the authority of agents in general, a factor has actual authority from his principal, unless specially restricted , — 1. To insure property consigned to him uninsured ; 2. To sell, on credit, anything intrusted to him for sale, except such things as it is contrary to usage to sell on credit ; but not to pledge, mortgage, or barter the same ; and, 3. To delegate his authority to his partner or servant, but not to any person in an inde- pendent employment. A factor has ostensible authority to deal with the property of his principal as his ovrn, in transactions with persons not having notice of the actual ownership : Cal. 7367-9 ; Dak. Civ. C. 1387-9. § 4385. Agricultural Produce. In Maryland, no consignment whatever of agricul- tural productions by the grower, producer, or other uwner to any commission merchant, factor, or consignee for the purpose of sale for the owner's use vests in the agent any other title than the right to sell and deliver the same to a fair and hona-fide purchaser for value ; and every mortgage, deposit, or pledge by such agent of such goods is void, and the title remains in the owne^r : Md. 34,12 and 14. If the agent become insolvent, the title to such produce does not pass to his assignee, but remains as above : Md. ih. 15. This section does not, however, impair the agent's lien for advances actually made to the owner, either in money or goods : Md. ih. 16. § 4386. General Regulations. In Texas, no factor or commission merchant to whom any cotton, sugar, or produce or merchandise of any kind is consigned, for sale on commission or otherwise, shall purchase the same or reserve any interest therein upon the sale of the same, directly or indirectly : Tex. 2368. All drawbacks and rebatements of insurance, freight, transportation, carriage, wharfage, storage, compressing, baling, repairing, or for any other kind of labor or service of or to any cotton, grain, or other produce or article of commerce, paid, allowed, or contracted for to any common carrier, shipper, merchant, fiictor, agent, or middle-man not the true and absolute owner thereof, are prohibited : Tex. 2371. § 4387. Factors' Lien. Factors have a general lien, dependent on possession, on property in their hands (ranking the same as pawnees' liens (§ 4522) : Ga.) : Cal. 8053 ; Dak. Civ. C. 1807 ; Ga. 1987. Compare §§ 4381,4383. See also §§ 4354,4375. A factor's lien extends to all balances on general account, and to the proceeds of a sale as well as to the goods themselves : Ga. 2111. § 4388. General Principles. A fact(ir is an agent who, in the pursuit of an indepen- dent callinff, is employed by anotlier to sell property for him, and is vested by the latter with the possession or control of the property, or authorized to receive payment therefor from the purchaser. A factor must obey the instructions of his principal to the same extent as any other em- ployee, notwithstanding any advances he may have made to his principal upon the property consigned to him, except that if the principal forbids him to sell at the market price, he may, nevertheless, sell for his reimlnirsoment, after giving to his principal reasonable notice of his intention to do so, and of the time and place of sale, and proceeding in all respects as a pledgee. A factor may sell property consigned to him on such credit as is usual ; but, having once agreed with the purchaser upon the term of credit, may not extend it. A factor who charges his principal with a guaranty commission upcm a sale, thereby assumes absolutely to pay the price when it falls due, as if it were a debt of his own, and not as a mere guarantor for the purchaser ; but he d(>es not thereby assume any additional respon- sibility for the safety of his remittance of the proceeds. INNKEEPERS. 523 A factor who receives property fur sale, under a general agreement or usage to guarantee the sales or the remittance of the proceeds, cannot relieve himself from responsibility therefor without the consent of his principal : Cal. 7026-7030; Dak. Civ. C. 1168-1172. A factor is an agent, as defined above. In addition to the authority of agents in general, a factor has actual authority from his prin- cipal, unless specially restricted : — 1. To insure property consigned to him uninsured; 2. To sell, on credit, anything intrusted to him for sale, except such things as it is contrary to usage to sell on credit ; but not to pledge, mortgage, or barter the same ; and, 3. To delegate his authority to his partner or servant, but not to any person in an inde- pendent employment. A factor has ostensible authority to deal with the property of his principal as his own, in transactions with persons not having notice of the actual ownersliip : Cal. 7367-9 ; Dak. Peculiar confidence is reposed in a factor ; he has liberal discretion according to the trade usage, and is bound to great diligence and good faith : Ga. 2111. Art. 439. Innkeepers. § 4390. Definitions. In Florida, hotels are defined to be houses kept for the accommo- dation of twenty-five or more lodgers or boarders: Fla. 114,1. The term inn includes all taverns, hotels, and houses of public general entertainment for guests : Ga. 2114. All persons entertained for hire in an inn are guests: Ga. 2116. § 4391. Liability. An innkeeper is liable for all losses of or injuries to personal property placed by his guests under his care, unless occasioned by an irresistible superhuman cause, by a public enemy, by the negligence of the owner, or by the act of some one whom he brought into the inn : Cal. 6859 ; Dak. Civ. C. J 062. An innkeeper is bound to extraordinary diligence in preserving the property of his guests intrusted to his care, and is liable for the same if stolen when the guest has complied with all reasonable rules of the inn : Ga. 2117. It is not necessary to show actual delivery to the innkeeper. Depositing goods in a public room, set apart for such articles, or leaving them in the room of the guest, or placing a horse in a stable, is a delivery to the innkeeper ; if, however, the guest delivers his goods to a ser- vant under special charge to him to keep the same, the innkeeper is not liable therefor : Ga. 2118, In case of loss, the presumption is want of proper diligence in the landlord. Negligence, or default by the guest himself, of which the loss is a consequence, is a sufficient defence. The innkeeper cannot limit his liability by a public notice ; he may adopt reasonable regulations for his own protection, and the publication of such to his guests binds them to comply therewith : Ga. 2120. § 4392. Relief from Liability. An innkeeper may generally relieve himself from the common -law liability for money and valuables of his guests lost or stolen, which have not been delivered to him for safe-keeping, by posting a notice that he keeps a safe for that purpose : E.I. 204,30 ; N.Y. 1855,421 ; 1883,227,1 ; N".J. Inns, 70 ; Pa. Inns, 18 ; 0. 4427, Amt. ; 111. 71,1-2 ; Mich. 2095 ; Wis. 1725; lo. 1880,181,1 ; Minn. 124,21 ; Neb. 1,39,1-2 ; Md. 67,17,6-7 ; Del. V. 14, 417,1 ; Ky. 1874, Feb. 5, § 1 ; Tenn. 2787 ; Cal. 6860; Dak. Civ. C. 1063; Ga. 2119 ; La. 2968 ; D. 1701-2 ; Ala. 1549,1550. So, he is not liable except after delivery to him of such property, or offer of de- hvery: N.H. 1885,97; Mass." 102,12; 1885,358; Me. 27,7; 0. ; Wis. ; Ky. ; Mo. 5785. No innkeeper is liable for the loss of any baggage or other property of his guests caused by fire, (1) not intentional, produced by the innkeeper or any of his servants: N.Y.= 1866,658 ; Wis. 1726 ; Mo. 5786. So, he is not liable (2) except in the absence of ordinary and reasonable care: Mass. 102,15; Me. 27,6. 524 BAILMENTS. In Florida, he is not liable for the loss of auy property unless a special deposit was made and written receipt given : Fla. 114,4. It is always a defence that the loss was occasioned by negligence of the guest, or by his non-compliance with the reasonable and proper regulations of the inn, of which he had actual notice: Mass. 102,16 ; Me. 27,8. An innkeeper is a depositary for hke, but his liability is subject to more stringent rules : Ga. 2115. No animal belonging to a guest and destroyed by fire while on the innkeeper's premises shall be deemed of a greater value than $300 without a special agreement : N.Y. 1866,458,2. No hotel-keeper is liable for the loss of wearing- apparel or merchandise for more than $500 when it occurred without his fault or negligence, nor for the loss of any article not within the guest's room, unless specially intrusted to the care of his servants : N.Y. 1883,227,2. No innkeeper is liable for goods stolen from a room left unlocked or unbolted, when he posts a notice requiring such boltiug, etc. : Pa. ib. 19 ; Del. ib. 2. Exceptions. But he will still be liable for a loss of goods not delivered to him (1) which occurs by the hand or negligence of himself or his servants : 0. ; 111. ; Mich. ; Wis. ; lo. ; Minn. 124,22 j 1883,30 ; Neb. ; Md. ; Ky. ; Mo. ; Cal. ; La. ; (2) for the loss of such jewelry, money, etc., as is usual and prudent for a guest to retain about his person or in his room : Pa., 111., Mich., lo., Neb. ; Del. ; La. ; (3) which occurs by the theft of himself or his servants : O. ; Mo. 5786 ; (4) which goods are needed by the guest for present use : Cal., Dak. ; (5) for the loss of articles worn or carried upon the person to a reasonable amount, personal luggage, and money necessary for travelling expeuses and personal use : N.H., Mass.,* Me. Notes. — ° And then only to the amount of $5,000, unless there is a special contract. * To an amount not exceeding $1,000. " Such property being stored in a barn or other outbuilding with the guest's knowledge. § 4393. Lien. (See also §§ 4354-5.) Hotel and inn keepers have, by the laws of most states, a lien (1) on the baggage and valuables of their guests for the proper charges due them: N.H. 139,1 ; Me. 91,46 ; N.Y. 1879,530,1 ; KJ. Iims, 68 ; Pa.* Inns, 17 ; 111. 82,48 ; Wis. 3344 ; lo. 1880,181,2 ; Va.« 1879,84,1 ; Tenn. 2784; Mo. 3198; Tex. 3182; Cal. 6861; Nev. 147; Col. 2118; Dak. Civ. C. 1062; Wy. 1882,50 ; Uta.« 1194; Ga. 2122; Fla. 114,6; N.M. 1542. (2) On the goods or personal property of the guest : N.H. ; Me. ; N.J. ; Pa. ; ^ Wis. 3344; Tenn.; Wy. ; Uta. ; IST.M. ; (3) on his personal baggage: Pa.; Ga. 1986; (4) on his horse : Pa. ib. 16 ; (5) on his wages : Mo. Except, in two states, there is no such lien as against seamen or mariners : N.H., Mass. So, in many states, boarding-house keepers: N.H. ; Mass. 192,31; Me.; Ct.° 18, 7,23 ; KY. 1860,446 ; N.J. ; Pa. ; 111. ; Wis. ; Ya. ;° Tenn. ; Mo. ; Tex. ; CaL ; Nev. ; Col. ; Dak. ; Wy. ; Uta. ; Ga. ; N.M. In Iowa, eating-house keepers. They have the right of possession of such baggage, etc., until paid : Ct., Pa., Va., Cal., Wy., Uta., Ga. Even though the goods were stolen : Ga. Innkeepers may sell baggage left behind when a person indebted for board has left and been absent six months: Nev. 147; so, three months: N.Y., Pa.; compare $ 4355. It is enforced by sale of the articles subject to lien : Me., Ct., N.J., Ya., Uta., Fla. Those are called innkeepers who keep a tavern or hotel, and make a business of lodging travellers. Innkeepers have a privilege, or more properly a right of pledge, on the property of travel- lers who take their board or lodging with them, by virtue of which thoy may retain the property and have it sold, to obtain payment of what such travellers may owe them, on either of tlio accounts above mentioned. Innkeepers enjoy this privilege on all the property which the traveller has brought to the inn, whether it belongs to him or not, because this property has become their pledge by the fact of its introduction into the inn. This privilege extends even to coined money which may be found in the apartment of the traveller who has died in their house. The term travellers applies to strangers and such as being transiently in a place where they have no domicile, take their board and lodging at an inn. GIFTS. 525 The innkeeper who retains the property of a traveller for tavern expenses due to him cannot sell it of his own authority ; he must apply to a tribunal to have his debt ascertained, and the property seized and sold for the payment of it : La. 3232-6. Notes. — " In the noted states, this lien only exists when a special agreement is made for the price of board. ^ Only for two weeks' board. § 4394. Duties. It is commonly a misdemeanor for an innkeeper to refuse guests. Compare also § 6054, and see in Part V. Every innholder must at all times be furnished with suitable provision and lodging for strangers, and with stable-room, hay, and provender for their horses and cattle, and with pasturing if required by the terms of his license ; and he shall grant such reason- able accommodation as occasion requires to strangers, travellers, and others : Mass. 102, 5 ; Me. 27,5 ; Vt. 3944. So, *'he must keep good entertainment for man and beast :" Pa. Inns, etc. 1. The innkeeper who advertises himself as such is bound to receive, as far as he can accommo- date, all persons of good character offering themselves as guests who are willing to comply with his rules. Persons entertaining only a few individuals, or simply for the accommodation of travellers, are not innkeepers, but simply depositaries for hire, bound to ordinary diligence : Ga. 2121. Innkeepers are required to give checks for baggage : Ga. 2123. CHAPTER III. — TRANSFERS AND LIENS. Art. 450. Gifts. § 4500. General Principles. A gift is a transfer of personal property, made voluntarily, and without consideration : Cal. 6146 ; Dak. Civ. C. 639. To constitute a valid gift, there must be the intention to give by the donor, acceptance by the donee, and delivery of the article given, or some act accepted by the law in lieu thereof: Ga. 2657. If the donation be of sub- stantial benefit, the law presumes the acceptance, unless the contrary be shown. A parent, guardian, or friend may accept for an infant : Ga. 2658. § 4501. Delivery. No gift, except by deed or will, is valid (even as against the giver) unless actual possession shall have come to and remained with the donee or his agent (compare § 4597): Va. 112,1; W.Va. 82,1; Tenn. 2430; Mo. 2499; Ark. 3376 ; Tex. 2467 ; Cal. 6147 ; Dak. Civ. C. 640 ; Ala. 2176 ; Miss. 1293. See § 4508. Or, if not capable of manual delivery, unless the means of obtaining possession and control are given, or symbolical delivery made: Cal., Dak. And if donor and donee reside together possession by the donee at their common residence is not sufficient : Va., W.Va., Ala. When the law requires a conveyance in writing to the validity of a gift, or the conveyance is made for a good consideration, such conveyance, executed and delivered, will dispense with the necessity of a delivery of the article given. A gift in writing, without good consideration and without delivery, is void : Ga. 2659. Actual manual delivery is not essential to the validity of a gift. Any act which indicates a renunciation of dominion by the donor and the transfer of dominion to the donee is a constructive delivery : Ga. 2660. § 4502. Revocation. A gift other than a donatio causa mortis (Art. 252) cannot be re- voked by the giver: Cal. 6148; Dak. Civ. C 641. Conditions. Impossible, illesjal, and immoral conditions are void, and do not invalidate a perfect gift : Ga. 2661. See ^ 4104. § 4503. Gifts by Insolvents, etc. (See also Art. 459, and in Part IV., Lisolvencij.) In several states, every gift, conveyance, assignment, transfer, or charge which is not upon consideration deemed valuable in law is void, as to creditors existing (1) at the time: Va. 114,2; W.Va. 96,2; Ky. 44,1,2 ; Ark. 3376; Tex. 2466; Miss. 1293. 526 TRANSFERS AND LIENS. (2) Or subsequently : Ark. ; (3) or as against purchasers : Ark ; Gra. 2832. But as to subsequent creditors or purchasers with notice, it is not void merely because voluntary or without consideration : Va. ; W.Va.; Ky. ; Tex. ; Miss. 1294. An insolvent per- son cannot make a valid gift to the injury of his existing creditors ; and where possession, partially or entirely, remains with the donor, every parol gift is void against hona-fide creditors and purchasers without notice : Ga. 2662; S.C. 2021. No voluntary gift or settlement of property by one indebted is deemed or taken to be void in law as to creditors of the donor or settlor prior to such gift, etc., merely because of such indebtedness, if at the time property fully sufficient and available for satisfaction of his then existing creditors be retained by him ; but such indebtedness, both to prior and subsequent creditors, is evidence only from which an intention of fraud may be inferred: N.C. 1547; Tex. But every voluntary deed, or conveyance not for value, made by a debtor insolvent at the time is void : Ga. 1952. § 4504. Gifts by Minors, etc. Gifts of persons just arriving at age to their parents, guardians, trustees, attorneys, etc., are to be scrutinized with great jealousy, and upon the slightest evidence of persuasion or influence shall be declared void, at the instance of the donor or his legal representatives, at any time within live years of the gift : Ga. 2666. If a gift be made for a specific purpose, expressed or secretly understood, and such pur- pose is illegal, or from other cause fails or cannot be accomplished, the donee shall hold as trustee for the donor or his next of kin : Ga. 2G67. § 4505. Presumption of Gift. The delivery of personal property by a parent into the exclusive possession of a child living separate from the parent shall create a presumption oi a gift to the child. It may be rebutted by evidence of an actual contract of lending or from circumstances from which such a contract may be inferred : Ga. 2663. The exclusive possession by a child of lands originally belonging to the father, without payment of rent for the space of seven years, shall create a conclusive presumption of a gift, and convey title to the child, unless there is evidence of a loan or of a claim of dominion by a father acknowledged by the child, or of a disclaimer by the child : Ga. 2664. If the child be a married daughter, the contract of loan referred to in the two preceding para- graphs must be assented to by the husband to rebut the presumption of a gift : Ga. 2665. § 4506. Deeds of Personalty. The laws of Georgia declare that a deed is not generally necessary to convey title to personal property : Ga. 2696. The principles applicable to deeds of land generally apply to deeds of personalty : Ga. But an attesting witness is not necessary : Ga. § 4507. Seals. All distinctions between sealed and unsealed instruments are abol- ished (see also § 1564) : Cal. 6629 ; Dak. Civ. C. 925. In Missouri, every instrument expressed on the face thereof to be sealed, and to which the person executing the same shall aflBix a scrawl by way of seal, shall be deemed sealed : Mo. 662. See, for other states and other provisions, $$ 1564-5,4131» § 4508. Record. In three states, all deeds of gift or deeds of trust of personalty are void as against creditors and subsequent purchasers for value until duly recorded : Va. 114,5 ; Mo. 2501; Miss. 1293; Ala. 2170. For the time, manner, and place of record the law is the same as in the case of chattel mortgages. See Art. 453. Every voluntary alienation or charge upon personal property, unless the actual possession in good faith accompanies the same, is void as to a purchaser without notice, or any creditor, prior to the recording such transfer, etc., in the office of the couuty court where such alienor resides : Ky. 44,1,3. Com])are § 4580. See also §$ 4131,4501,4597,4599. CIVIL LAW OF DONATIONS INTER VIVOS. 527 Art. 451. Civil Law of Donations Inter Vivos. § 4510. Note. This law applies as well to real as to personal property, and as well to donations mortis causa or by will as to gifts inter vivos. See § 2520, note °. For the disposable portion, see Art. 441. § 4511. General Dispositions. Property can neither be acquired nor disposed of gratu- itously unless by donations inter vivos or viortis causa, made in the forms hereafter established. A donation inter vivos (between living persons) is an act by which the donor devests himself at present and irrevocably of the thing given in favor of the donee who accepts it. A donation mortis causa (in prospect of death) is an act to take effect when the donor shall no longer exist, by which he disposes of the whole or a part of his property, and which is revo- cable T La. ] 467-9. § 4512. Of the Capacity necessary for Disposing and Receiving by Donation Inter Vivos or Mortis Causa. All persons may dispose or receive by donation inter vivos or mortis causa, except such as the law expressly declares incapable : La. 1470. To make a donation either inter vivos or mortis causa one must be of sound mind. The minor under sixteen years cannot dispose of any property, save, however, dispositions made by marriage contract : La. 1475-6. Compare H 2602,2604. See also U 2604,2610,2615,2616,2617,2619,2621,2623, which apply also to donations inter vivos. In order to be capable of receiving by donation inter vivos, it suffices to be conceived at the time of donation : La. 1482. § 4513. Of Dispositions Reprobated by Law in Donations Inter Vivos and Mortis Causa. (See also § 2625.) In all dispositions inter vivos and mortis causa im- possible conditions, those which are contrary to the laws or to morals, are reputed not written. Substitutions and fidei commissa are and remain prohibited. Every disposition by which the donee, the heir, or legatee is charged to preserve for or to return a thing to a third person is null, even with regard to the donee, the instituted heir, or the legatee. In consequence of this article the trebellianie portion of the civil law, that is to say, the portion of the property of the testator which the instituted heir had a right to detain when he was charged with a Jidei commissa or fiduciary bequest, is no longer a part of our law. The disposition by which a third person is called to take the gift, the inheritance, or the legacy, in case the donee, the heir, or the legatee does not take it, shall not be considered a substitution and shall be valid. The same shall be observed as to the disposition inter vivos or mortis causa, by which the usufruct is given to one, and the naked ownership to another : La. 1519-1522. § 4514. Of Donations Inter Vivos. There are three kinds of donations inter vivos : — The donation purely gratuitous, or that which is made without condition and merely from liberality. The onerous donation, or that which is burdened with charges imposed on the donee. The remunerative donation, or that the object of which is to recompense for services rendered. The onerous donation is not a real donation, if the value of the object given does not mani- festly exceed that of the charges imposed on the donee. The remunerative donation is not a real donation, if the value of the services to be recom- pensed thereby, being appreciated in money, should be little inferior to that of the gift. In consequence, the rules peculiar to donations inter vivos do not apply to onerous and remunerative donations, except when the value of the object given exceeds by one half that of the charges or of the services. The donor may impose on the donee any charges or conditions he pleases, provided they contain nothing contrary to law or good morals. A donation inter vivos can comprehend only the present property of the donor. If it com- prehends property to come, it shall be null with regard to that. 528 TRANSFERS AND LIENS. Every donation inter vivos made on conditions, the execution of which depends on the sole will of the donor, is null. It is also null, if it was made on condition of paying other debts and charges than those that existed at the time of the donation, or were expressed either in the act of donation or in the act that was to be annexed to it. In case the donor has reserved to himself the liberty of disposing of any object comprised in the donation or of a stated sum on the property given, if he dies without having disposed of it, that object or sum shall belong to the heirs of the donor, any clause or stipulation to the contrary notwithstanding. The four preceding paragraphs are not applicable to donations by marriage contract. The donor is permitted to dispose, for the advantage of any other person, of the enjoyment or usufruct of the immovable property given, but cannot reserve it for himself. The donor may stipulate the right of return of the objects given, either in case of his sur- viving the donee alone, or in case of his surviving the donee and his descendants. That light can be stipulated for the advantage of the donor alone. The effect of the right of return is, that it cancels aU alienations of the property given that may have been made by the donee or his descendants, and causes the property to return to the donor, free and clear of all incumbrances and mortgages, except, however, the mortgage for the dowry and matrimonial agreements, if the other property of the husband, being the donee, be not suflBcient, and only in case the donation was made to him by the same marriage contract which gave rise to such rights and mortgages : La. 1523-1535. § 4515. Of the Form of Donations Inter Vivos. An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights, or actions, under the penalty of nullity. No feigned delivery of immovables given shall have effect against third persons. A donation inter vivos, even of movable effects, will not be valid, unless an act be passed of the same, as is before prescribed. Such an act ought to contain a detailed estimate of the effects given. The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality. A donation inter vivos shall be binding on the donor, and shall produce effect only from the day of its being accepted in precise tenns. The acceptance may be made during the lifetime of the donor by a posterior and authentic act, but in that case the donation shall have effect, with regard to the donor, only from the day of his being notified of the act establishing that acceptance. Yet, if the donation has been executed, that is, if the donee has been put by the donor into corporeal possession of the effects given, the donation, though not accepted in express terms, has full effect. If the donee be of full age, the acceptance may be made by him, or in his name by his attorney in fact having special power to accept the donation wliich is made, or a general power to accept the donations that have been or may be made. The acceptance can only be made by the donee personally, or by his attorney in fact during his life. If he refuse or neglect to accept, his creditors cannot accept it in his stead, under the pretext that the refusal has been in fraud of their rights. If the donee die before having accepted, the acceptance cannot be made by his heirs, and the donation remains without effect. A married woman cannot accept a donation without the consent of her husband, and in case of the husband's refusal, without being authorized by the judge, conformably to what is prescribed in the title : Of Husband and Wife (Art. 645). A donation made to a minor, not emancipated, must be accepted by his tutor. Nevertheless, the parents of a minor, whether he be or be not emancipated, and the other legitimate ascendants, even in the lifetime of the parents, though they be not tutors to the minor, may accept for him. If a donee, being of full age, be under interdiction, the acceptance is made for him by his curator. A person deaf and dumb, knowing how to write, may accept for himself or by an attorney in fact. CIVIL LAW OF DONATIONS INTER VIVOS. 529 If ho cannot write, the acceptance shall bo made by a curator appointed by the judge fur that purj)ose. Donations made for the benefit of a hospital, of the poor of a community, or of estab- lishmouts of public utility, shall be accepted by the admiuistrators of such communities or establishments. A donation, duly accepted, is perfect by the mere consent of the parties ; and the ownership of the objects given is transferred to the donee, without the necessity of any other delivery. The property given passes to the donee with all its charges, even those which the donor has imposed between the time of the donation and that of the acceptance. The universal donee is bound to pay the debts of the donor, which existed at the time of the donation, but he can discharge himself therefrom by abandoning tlie property given. If tlie wliole of the effects of the donor have beeu given to several donees, each for a certain proportion, each of them is bound for the debts for the portion of which he is the donee. When the donation comprehends property that may legally be mortgaged, the act of dona- tion, as well as the act of acceptance, whether the acceptance be made by the same or a separate act, must be registered, within the time prescribed for the registry of mortgages, in a separate book kept for that purpose by the register of mortgages, which book shall be open to the inspection of all parties requiring it. This registry shall be made at the instance of the husband, when the property has been given to his wife ; and if the husband does not comply with this formality, the wife may cause it to be complied with, without requiring authorization for that purpose. When the donation is made to minors, to persons under interdiction, or to public establish- ments, the registry shall be made at the instance of the tutors, curators, or administrators. The want of registry may be pleaded by all persons concerned, except the donor, those persons whose duty it was to cause the registry to be made, and their representatives. Minors, persons under interdiction, or married women, are not entitled to relief for the want of acceptance or registry of donations; but they have in such case their recourse against their tutors, curators, or husbands ; and even in case of the insolvency of such tutors, curators, or husbands, they shall not be entitled to relief by way of restitution : La. 1536-1553. § 4516. Of the Exception to the Rule of the Irrevocability of Donations Inter Vivos. Donations inter vivos are liable to be revoked or dissolved on account of the following causes : — 1. The ingratitude of the donee. 2. The non-fulfilment of the eventual conditions, which suspend their consummation. 3. The non-performance of the conditions imposed on the donee. 4. The legal or conventional return. Revocation on account of ingratitude can take place only in the three following cases : • 1. If the donee has attempted to take the life of the donor. 2. If he has beeu guilty towards him of cruel treatment, crimes, or grievous injuries. 3. If he has refused him food when in distress. An act of revocation for cause of ingratitude must be brought within one year from the day of the act of ingratitude, imputed by the donor to the donee, or from the day that the act was made known to the donor. The revocation cannot be sued for by the donor against the heirs of the donee, nor by the heirs of the donor against the donee, unless, in the latter case, the suit was brought by the donor, or he died within the year in which the act of ingratitude was committed. Revocation for cause of ingratitude affects neither the alienation made by the donee nor the mortgages, nor the real incumbrances he may have laid on the thing given, provided such transactions were anterior to the bringing of the suit of revocation. In case of revocation for cause of ingratitude, the donee shall be obliged to restore the value of the thing given, estimating such value according to its worth at the time of bringing the action, and the fruits from the day that it is brought. Donations in considerati(m of marriage are not revocable for cause of ingratitude, when there are children of that marriage. When there are not, the revocation takes place with regard to the donee, but without impairing the rights resulting from the marriage in favor of the other party to the mamage. When an eventual condition, which suspends the execution of a donation, can no longer be accomplished, as if the donation was to be executed on the arrival of a certain vessel, and the vessel is lost, the donation is dissolved of right. 34 530 TRANSFERS AND LIENS. But if the conditions be potestative, that is, if the donee is obliged to perform or prevent them, their nou-fulfihnent does not, of right, operate a dissolution of the donation ; it must be sued for and decreed judicially. An action of revocation or rescission of a donation on account ctf the non-execution of the conditions imposed on the donee, is subject only to the usual prescription, which runs only from the day that the donee ceased to fulfil his obligations. In case of revocation or rescission on account of the non -execution of the conditions the property shall return to the donor free from all incumbrances or mortgages created by the donee ; and the donor shall have against any other persons possessing the immovable prop- erty given, all the rights that he would have against the donee himself. In all cases in which the donation is revoked or dissolved, the donee is not bound to restore the fruits by him gathered previous to the demand for the revocation or rescission. But in case of the non-fulfilment of conditions, which the donee is bound to fulfil, if it be proved to have proceeded from his fault, he may be condemned to restore the fruits by him received since his neglect to fulfil the conditions : La. 1559-1569. Art. 452. Pledges. (The statutes regulating the business of pawnbroking are not incorporated in this article. See in Part III.) § 4520. Definitions. Pledge is a deposit of personal property by way of security for the performance of a debt or another act: Cal. 7986 ; Dak. Civ. C. 1757 ; Ga. 2138. Every contract by which the possession of personal property is transferred as security only is to be deemed a pledge : Cal. 7987 ; Dak. Civ. C. 1758. The lien of a pledge is dependent on possession ; and no pledge is valid until the property pledged is delivered to the pledgee or to a pledge-holder, as hereafter prescribed : Cal. 7988 ; Dak"^ Civ. C. 1759; Ga. 2138; La. D. 2905. Promissory notes or obligations may be delivered in pledge ; but the delivery of title-deeds creates no pledge : Ga. 2138 ; La. D. 2904. The receiver in pledge of promissory notes is such a bona-fide holder as will protect him under the same circumstances as a purchaser from the equities between the parties, but not from the true owner, if fraudulently transferred, though without notice to him : Ga. 2139. § 4521. General Principles. The increase of property pledged is pledged with the prop- erty (Cal.; Dak.; Ga. 2147). One who has a lien upon property may pledge it to the extent of his lien. One who has allowed another to assume the apparent ownership of property for the purpose of making any transfer of it cannot set up his own title to defeat a pledge of the property made by the other to a pledgee who received the property in good faith, in the ordinary course of business, and for value. Property may be pledged as security for the obligation of another person than the owner, and in so doing the owner has all the rights of a pledgor for himself, except as hereinafter stated. A pledgor and pledgee may agree upon a third person with whom to deposit the property pledged, who, if he accepts the deposit, is called a pledge-holder. One who pledges property as security for the obligation of another cannot withdraw the property pledged otherwise than as a pledgor for himself might ; and if he receives from the debtor a consideration for the pledge, he cannot withdraw it without his consent. A pledge-holder for reward cannot exonerate himself from his undertaking ; and a gratu- itous pledge-holder can do so only by giving reas},54 ; Wash. 1986 ; Ida. ib. 1 ,; 1885, p. 74, § 1 ; Wy. 1882,11,7 ; N.M. 1586. (2) Crops, whether matured or not : N.H., Nev., Wash., Ariz. But not, in others, until they are matured and gathered : N.M. See also § 1853. (3) Rolling-stocit of a railway: Wash.; Ariz. 3644. (4) Machinery: Wash., Ariz. (5) Boats and vessels : Wash. (6) Possessory claims to public lauds : Wy. (7) Mining claims : Wy. (8) Cattle or herds : Wy., Ariz. (9) Furniture of hotels and boardiug-houses, to secure the purchase-money : Ariz. (10) Saw-mill, grist-mill, and steamboat machinery : Cal. 7955, Amt. ; Ariz. (11) Printing- presses and material : Ariz. (12) Instruments of a surgeon or physician : Ariz. (13) Libraries of all pers(jns : Ariz. (14) Farm-stock and tools : Ariz. The following kinds of personal property must be mortgaged by a deed executed, acknowledged, and recorded like real estate : (1) machinery used in a shop, mill, or factory : Vt. 1980 ; Ct. 18,7,7 ; (2) household furnituie or hay or tobacco, with or without the building : Ct. 1875,52 ; (3) hotel furniture and fixtures : Ct. 1878,90. Mortgages may be made upon: (1) locomotives, engines, and other rolling-stock of a railroad ; (2) steamboat machinery, the machinery used by machinists, foundrymen, and me- chanics ; (3) steam-engines and boilers ; (4) mining machinery ; (5) printing presses and material ; (6) professional libraries ; (7) instruments of a surgeon, physician, or dentist ; (8) upholstery and furniture used in hotels, lodging or boarding houses, when mortgaged to secure the purchase-money of the articles mortgaged ; (9) growing crops; (10) vessels of more than five tons burden ; (11) instruments, negatives, furniture, and fixtures of a photograph gallery; (12) machinery, casks, pipes, etc., used in the manufacture of wine, fruit braudy, syrup, or sugar : Cal. Amt. V. 3, 7955. (B) After-acquired property or property to be grown or acquired, of a similar nature to that owned and mortgaged at the time, may be included in the mortgage : Wy. Note. — " But it must be of at least the value of $250. § 4543. Sale by Mortgagor. The mortgagor may not sell (or pledge : N.H., Vt., Minn., Col. ; or conceal or carry away : Me., Ct., Ind., 111., Mich., Wis., lo,, Minn., Neb., Md., Ky., Ark., Tex., Col," Wa,sh., Dak., Ida., Mon., Uta., N.M., Ariz. ; or remove : Me., Ct., N.J., 0., Ind., III., Mich., Wis., Minn., Neb., Md., Del., Ark., Tex., Col," Wash., Dak., Ida., Mon., Wy.,"^ Uta., N.M. ; or otherwise dispose of : Mich., lo., Minn., Neb., Md., N.C., Ky., Tenn., Mo., Ark., Tex., Col.,'' Wash., Dak.. Ida., Mon., Uta., Ga.) such property without the consent of the mortgagee : N.H. 137,13; Me.« 126,4 ; Vt." 1972 ; Ct.n877,o3 ; N.J.« 1885,44,13 ; 0.« 6849 ; Ind." 1954 ; 111." 95,7 ; Mich." 9187 ; Wis." 4467 ; Io.<^ 3895 ; Minn."-* 39,14; 1883,23 ; Neb.^ 1,12,9 ; Md." 1884,202 ; Del." V. 15,477,4 ; N.C." 1089 ; Ky." 1874. Feb. 23 ; Tenn.^ 5847 ; Mo." 1341 ; Ark.<^ 1693 ; Tex.^ Crim. C. 797 ; 1879,12,1,6 ; Col.^ 170-1 ; Wash." 1999 ; Dak.*^ P. C. 579 ; Ida.'^ 1880-1, p. 307,1 ; Mon." ib. 13 ; Wy.*^ 1882,11,20 ; Uta." ib. 11 ; Ga."'^' ' 4600 ; 1883, p. Ill ; N.M." 1598; Ariz.'' 1885,27; S.C." 2515; Ala." 4354; Fla." 56,47 ; 68,13-4. Such consent must be written on the margin of the record : N.H., Vt. It must be written simply : Ct., Minn., Neb.,'' Mo., Ida., N.M., Fla. Such sale or removal is a breach of the condition of the mortgage, and the mortgagee may thereupon take possession or seU : Tex. 1879,127,6 ; Cal. 7966 ; Dak. Civ. C. 1752. See also in Part V., for other states. He cannot execute a subsequent mortgage unless the fxct of the previous mortgage is set out in the instrument: N.H. 137,14; Vt.« 197-3-4. No one can remove such property mort- gaged from the state without the c(msent of the mortgagor and mortgagee : Vt. 1971. So, every chattel mortga.ge (except of vessels or rolling-stock, in New Jersey) vests in the mortgagee the right to possession of the chattels so far as may be necessary for the purpose of preventing their removal out of the county and recovering them if so removed : N.J. 1882,179, 1 and 3; 1885,244,1 and 3. 540 TRANSFERS AND LIENS. If the mortgagor sell the property to a third persou without giving him notice of the mortgage (1) he shall forfeit and pay to the purchaser twice the value of the property : 111. 95,6; Col. 168; Mon. ib. 12. (2) He is subjected to fine and imprisonment: Ct. 1877,53,2. See also in Part V. Notes. — " Such sale, etc., is a misdemeanor ; ^ unless fraudulent intent be disproved. <= It is a felony. '^ It is larceny. * This provi;^ion applies also to the vendees under conditional sales. § 4544. Assignment. Mortgages of personalty may he assigned in the same manner as mortgages of realty : Md. 44,53 ; so, probably, iu all states. § 4545. Illegal Consideration. In one state, no conveyance or mortgage made to secure the payment of any debt or the performance of any contract or agreement, is deemed void as against any purchaser for value of the property mortgaged because the consideration of such debt, etc., is forbidden by law, if such purchaser at the time of purchase did not have notice of such unlawful consideration : N.C. 1549. § 4546. Special Cases of Chattel Mortgages by Tenants. Crops. The lieu of a mortgage on a growing crop c(nitinues on the crop after severance, whether remaining iu its original state or converted into another product, so long as it remains upon the land of the mortgagor : Cal. V. 3,7972. § 4547. Proof of Fraud. In Wisconsin, whenever it shall appear upon the trial of any action against a sheriff, coroner, constable, or other officer for the recovery of the possession of pers(mal property or the value thereof, that the defendant obtained the possession of such prop- erty by virtue of an execution or attachment against the property of a person not a party to such action, from whom the plaintiff claims to have derived his right by a mortgage, and that such property was taken by the officer from the possession of the defendant in such execution or attachment, or from premises occupied or controlled by him, and it shall be alleged in the answer that such mortgage was fraudulent as to the creditors of the mortgagor, then the burden of proof shall be upon tlie plaintiff to show that such mortgage was given in good faith and to secure an actual indebtedness, and the amount thereof : Wis. 2319. For other states, see in Part IV. Art. 455. Conditional Sales. § 4550. General Principles. In one state, the law in personal property is the same as in realty ; see § 1891 : Ga. 1969. § 4551. Right to Redeem. In one state, the vendee may redeem, on paying unpaid price, interest, and charges, at any time within fifteen days after condition broken : Mass. 192, 13. W ithin two years after breach : S. C 2347. § 4552. Statute of Frauds. See Art. 414. In two states, no agreement that personal property bargaincnl and delivered to another (for which a note is given : Me.) shall remain the property of the vendor until the note is paid, is valid, (1) unless made and signed as a part of the note: Me. 111,5; (2) unless in writing, and a copy be furnished to the vendee: Mass. 1884,313. § 4553. Record. (A) In many states, all conditional sales must (to be valid as against third persons) be recorded (1) like mortgages of personal property in all respects" (§§ 4530-2) : N.Y. 1884,315,1-2 ; lo. 1922; Mo. 2505; Col. 109 : S. C. 2022 ; 1882,20. Record is made in the town where the vendee resides, if in the State : N.H. 1885,30; Vt. 1992 ; Neb. 1,32,26; N.C. 1275; otherwise where the vendor resides : N.H., Vt., Neb. So, in others, (2) all agreements that goods sold and delivered shall remain the prop- erty of the vendor until (a) the price or a note is paid : Me.** 111,5 ; N.Y. ; O. 1885, p. 2.38; Wis. 2317; W.Va. 96,3; Mo. 2507; Tex.« 1885,78; Ga. 1955a; (/3) or any other condition satisfied : lo., W.Va., Mo. (3) So, all leases where the title is to depend upon any condition : lo., Neb., Mo. SALES. 541 Such record must be matle witliin thirty days of the sale: Vt. ; within ten days : N.H. The effect of record will not extend beyond (1) one year from the time for performance, unless it is renewed : Wis. ; (2) five years, unless renewed : Neb. (B) But in other states, the conditional sale seems to be good ; only a note or other evidence of indebtedness given by the vendee therefor is void as against his creditors and subsequent purchasers or mortgagees unless such note or contract be recorded with the town clerk where the vendee resides : Minn. 39,15-6; 1883,38,2; 1885,76. Such record ceases to bo notice after one year from the time the note, etc., became due : N.Y. ib. 3; Minn. 39,17. This section does not, however, apply to household goods, pianos, etc., if the contract of sale be executed in duplicate and one duplicate shall be delivered to the purchaser : N.Y. 1885,488. An affidavit of good faith must be appended to such sale, signed by both parties, and recorded therewith : N.H. 1885,30,2. Notes. — « Such agreements are held to create chattel mortgages. ^ If the note is for more than $30. § 4554. Foreclosure, etc. Whenever personal property is sold or delivered on a conditional sale or lease, or agreement that it shall remain the property of the vendor until payment is made or other condition performed, it is, in two states, made unlawful for the vendor or lessor to take possession or seize the property without refunding the sums actually paid by the lessee, less a reasonable compensation for use, in no case exceeding twenty-five per cent (in Ohio, fifty per cent) of such sums paid, and for actual breakage or damage : 0. 1885, p. 239,2 ; Mo. 2508. All personal property to which title is held by the vendor as above is subject to redemption, after breach, like a chattel mortgage (§ 4429), unless otherwise stipulated in the notes: Me. 91,7. It may be retaken, and sold by the vendor thirty days after condition broken: Vt. 1884, 93,5; N.Y. 1885,488. § 4555. Removal. No personal property sold conditionally upon which there is reserved a lien duly recorded shall be removed from the State without the consent of the vendor or his assignee : Vt. 1884,93,1. See also $ 4543, and in Part V. Art. 456. Sales. § 4560. General Principles. Sale is a contract by which, tor a pecuniary considera- tion, called a price, one transfers to another an interest in property : Cal. 6721 ; Dak. Civ. C. 981. The subject of sale must be property, the title to which can be immediately transferred from the seller to the buyer: Cal. 6722; Dak. Civ. C. 982. In all cases, where no special provision is made under the present title, the contract of sale is subjected to the general rules established under the title : Of Contracts : La. 2433. The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself: La. 2439. Three circumstances concui- to the perfection of the contract, to wit : the thing sold the price, and the consent : Ga. 2629 ; La. § 4561. Agreements for Sale. An agreement for sale is either : — 1. An agreement to sell ; 2. An agreement to buy ; or, 3. A mutual agreement to sell and buy. An agreement to sell is a contract by which one engages, for a price, to transfer to another the title to a certain thing. An agreement to buy is a contract by which one engages to accept from another and pay a price for the title to a certain thing. An agreement to sell and buy is a contract by which one engages to transfer the title to a certain thing to another, who euijages to accept the same from him and to pay a price there- for : Cal. 6726-9 ; Dak. Civ. C.^983-6. 542 TRANSFERS AND LIENS. Any property which, if in existence, might be the subject of sale, may be the subject of an agreement for sale, whether in existence or not : Cal. 6730 ; Dak. Civ. C. 987. An agreement to sell real property binds the seller to execute a conveyance in form sufficient to pass the title to the property : Cal. 6731 ; Dak. Civ. C. 988. An agreement on the part of a seller of real property to give the usual covenants binds him to insert in the grant covenants of '^seisin," "quiet enjoyment," "further assurance," "general warranty," and " against incumbrances: " Cal 6733 ; Dak. Civ. C. 989. The covenants above mentioned must be in substance as follows : " The party of the first part covenants with the party of the second part, that the former is now seized in fee-simple of the property granted ; that the latter shall enjoy the same without any laM'ful disturbance ; that the same is free from all incumbrances ; that the party of the first part, and all persons acquiring any interest in the same through or for him, will, on demand, execute and deliver to the party of the second part, at the expense of the latter, any further assurance of the same that may be reasonably required ; and that the party of the first part will warrant to the party of the second part all the said property against every person lawfully claiming the same : " Cal. 6734 ; Dak. Civ. C. 990. § 4562. Who May Sell. See also ill Art. 650. He who is already the owner of a thing cannot validly purchase it. If he buys it through error, thinking it the property of another, the act is null, and the price must be restored to him. The sales of immovable property made by parents to their children may be attacked by the forced heirs, as containing a donation in disguise, if the latter can prove that no price has been paid, or that the price was below one fourth of the real value of the immovable sold, at the time of the sale : La. 2443-4. All persons may buy and sell, except those interdicted by law. La. 2445. § 4563. "What May be Sold. A bare contingency or possibility cannot be the subject of sale, unless there exists a present right in the person selling to a future benefit; so a contract for the sale of goods to be delivered at a future day, where both parties are aware that the seller expects to purchase himself to fulfil his contract, and no skill and labor or expense enters into the consideration, but the same is a pure speculation on chances, is contrary to the policy of the law, and can be enforced by neither party : Ga. 2638. Compare ^ 1420,4132,4770. The seller can convey no greater title than he has himself There is no "market overt" in Georgia: Ga. 26.39. For negotiable paper, see Art. 473. When the sale is of goods to be manufactured and delivered at a future time, the question of risk will depend upon the fact, to be ascertained in each case, whether the parties stipulate for a particular article in course of constructi(m, or an article filling the specification of the contract. In the former case, the title passes to the vendee before delivery ; in the latter, not : Ga. 2645. Louisiana Lavr. Any efiects of commerce may be sold when there exists no particular law to proliibit the traffic thereof. Not only corporeal objects — such as movables and immovables, live-stock and produce — may be sold, but also incorporeal tilings, — such as a debt, an inheritance, a servitude, or any other rights. A sale is sometimes made of a thing to come, — as of what shall accrue from an estate, of animals yet unborn, or such like other things, although not yet existing. It also happens sometimes that an uncertain hope is sold, — as the fisher sells a haul of his net before he throws it ; and although he should catch nothing, the sale still exists, because it was the hope that was sold, together with the right to have what might be caught. The sale of a thing belonging to another person is null ; it may give rise to damages when the buyer knew not that the thing belonged to another persf)n. The thing claimed as the property of the claimant cannot be alienated pending the action, so as to prejudice his right. If judgment be rendered for him, the sale is considered as a sale of another's property, and does not prevent him from being put in possession by virtue of such judgment. The succession of a living person cannot be sold. If, at the moment of the sale, the thing sold is totally destroyed, the sale is null; if there is only a part of the thing destroyed, the purchaser has the choice either to abandon the sale or to n-tain the preserved part, by having the price thereof determined by appraisement : La. 2448- 2455. SALES. 543 § 4564. Form of the Contract. For the Statute of Frauds, see Art. 414 The verbiil sale of all movable effects, whatever may be their value, is valid , but its testi- monial proof must be made agreeably with what is directed in the title : Of Contracts : La. 244L The sale of any immovable made under private signature shall have effect against the creditors of the parties, and against third persons in general, only from the day such sale was registered according to law, and the actual delivery of the thing sold took place. But this defect of registering shall not be pleaded between the parties who shall have con- tracted hi such act, their heirs or assigns, who are as effectually bound by a sale made under private signature, as if it were by an authentic act : La. 2442. § 4565. How the Contract of Sale is to be Perfected. The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered nor the price paid. The sale may be made purely and simply or under a condition either suspensive or resolutive. The object of the sale may also be two or more alternative things. In all these cases its effects are regulated by the principles laid down in the title : Of Contracts. When goods, produce, or other objects are not sold in a lump, but by weight, by tale, or by measure, the sale is not perfect, inasmuch as the things so sold are at the risk of the seller until they be weighed, counted, or measured ; but the buyer may require either the delivery of them or damages, if there be any, in case of non-execution of the contract. If, on the contrary, the goods, produce, or other objects have been sold in a lump, the sale is perfect, thougli these objects may not have been weighed, counted, or measured. Things of which the buyer reserves to himself the view and trial, although the price be agreed on, are not sold until the buyer be satisfied with the trial, which is a kind of suspensive condition of the sale. The sale of a thing includes that of its accessories and of whatever has been destined for its constant use, unless there be a reservation to the contrary. A promise to sell amounts to a sale wlien there exists a reciprocal consent of both parties as to the thing and the price thereof; but to have its effect, either between the contracting parties or with regard to other persons, the promise to sell must be vested with the same formalities as are above prescribed in §§ 4560,15(30 concerning sales, in all cases where the law directs that the sale be committed to writing. But if the promise to sell has been made with the giving of earnest, each of the contracting parties is at liberty to recede from the promise : to wit, he who has given the earnest, by for- feiting it ; and he who has received it, by returning the double. The price of the sale must be certain, — that is to say, fixed and determined by the parties. It ought to consist of a sum of money, otherwise it would be considered as an exchange. It ought to be serious, — that is to say, there should have been a serious and true agreement that it should be paid. It ouglit not to be out of all proportion with the value of the thing ; for instance, the sale of a plantation for a dollar could not be considered as a fair sale ; it would be considered as a d.iuation disguised. The price, however, may be left to the arbitration of a third person ; but If such person cannot, or be unwilling to make the estimation, there exists no sale. The expenses of the act or other incidental costs of sale are chargeable to the buyer, unless some agreement be made to the contrary : La. 2456-2460. § 4566. Rights and Duties of the Seller. After personal property has been sold, and until the delivery is completed, the seller has the rights and obligations of a d(>positary for hire, except that he must keep the property, without charge, until the buyer has had a reasonable opportunity to remove it. If a buyer of personal property does not pay for it according to contract, and it remains in the possession of the seller after payment is due, the seller may rescind the s;ile, or may enforce his lien for the price, in the manner prescribed by the title on lieus : Cal. 6748-9 ; Dak. Civ. 544 TRANSFERS AND LIENS. C. 995-6. One who sells personal property must bring it to his own door ; but further trans- portation is at the buyer's risk. Whether it was in his possession at the time of sale or not, he must put it into a condition fit for delivery, and deliver it to the buyer within a reasonable time after demand, unless he has a lien thereon. Personal property sold is deliverable at the place vrhere it is at the time of the sale or agreement to sell, or if it is not then in existence, it is deliverable at the place where it is produced : Cal. 6753-5 ; Dak. Civ. C. 997-9. When either party to a contract of sale has an option as to the time, place, or manner of delivery, he must give the otiier party reasonable notice of his choice ; and if he does not give such notice within a reasonable time, his right of option is waived. If a seller agrees to send the tiling sold to the buyer, he must follow the directions of the latter as to the manner of sending, or it will be at his own risk during its transportation. If he follows such directions, or if, in the absence of special directions, he uses ordinary care in forwarding the thing, it is at the risk of the buyer. The delivery of a tiling sold can be offered or demanded only within reasonable hours of the day : Cal. 6756-8 ; Dak.' Civ. C. 1000-1002. The seller is bound to explain himself clearly respecting the extent of his obligaticms ; any obscure or ambiguous clause is construed against him. The seller is bound to two principal obligations, — that of delivering and that of warranting the thing which he sells. The warranty respecting the seller has two objects : the first is the buyer's peaceable pos- session of the thing sold, and the second is the hidden defects of the thing sold or its redhibitory vices : La. 2474-6. § 4567. Title Passed. Tlie title to personal property sold or exchanged passes to the buyer whenever the parties agree upon a present transfer, and the thing itself is identified, whether it is separated from other things or not: Cal. 6140; Dak. Civ. C. 636. Title is transferred by an executory agreement for the sale or exchange of personal property only when the buyer has accepted the thing, or when the seller has completed it, prepared it for delivery, and offered it to the buyer, with intent to transfer the title thereto in the manner pre- scribed in Art. 417 : Cal. 6141 ; Dak. (Uv. C. 637. Where the possession of personal property, together with a power to dispose thereof, is transferred by its owner to another person, an exe- cuted sale by the latter, while in possession, to a buyer in good faith and in the ordinary course of business, for value, transfers to such buyer the title of the former owner, though he may be entitled to rescind, and does rescind the transfer made by him : Cal. 6142 ; Dak. Civ. C. 638. Special Cases. Cotton, corn, rice, or other products sold by planters and commission merchants on cash sale, shall not be considered as the property of the buyer, or the ownership given up until the same shall be fully paid for, althougli it may have been delivered into the possession of the buyer : Ga. 1.593. Failing to pay, or to pay a draft, for such cotton is made a criminal offence. See in Part V. Delivery. Generally, the delivery of the goods is essential to the perfection of a sale. The intention of the parties to a ccmtract may dispense therewith ; delivery need not be actual; constructive delivery may be inferred from a variety of facts. Until delivery is made or dis- pensed with, the goods are at the risk of the seller : Ga. 2644. Louisiana Law. The tradition or delivery is the transferring of the thing sold into the power and possession of the buyer. The tradition or delivery of movable effects takes place either by their real tradition or by the delivery of tlie keys of the buildings in which they are kept ; or even by tlie bare consent of tlie parties, if the things cannot be transported at the time of sale, or if the purchaser had tliem already in his possession under another title. The law considers the tradition or delivery of immovables as always accompanying the public act which transfers the property. Every obstacle which the seller afterwards interposes to prevent the taking of corporal possession by the buyer is considered as a trespass. In all cases where the thing sold remains in the possession of the seller, because he has reserved to himself the usufruct or retains possession by a precarious title, there is reason to presume that the sale is simulated ; and with respect to third persons, the parties must produce proof that they are acting in good faith and establish the reality of the sale. The tradition of incorporeal rights is to be made either by the delivery of the titles and of the act of transfer or by the use made by the purchaser with the consent of the seller. SALES. 545 When the object sold is out of the vendor's possession he must redeem it at his cost, and deliver it to the buyer, unless it be differently agreed between the parties, ur unless it evidently appears from the contract that the buyer himself has undertaken to reclaim it. The costs of delivery are chargeable to the seller, and those of removing are to be supported by the buyer if there has been no stipulation made to the contrary. The delivery must be made on the place where the thing which is the object of the sale was at the time of such sale if not otherwise agreed upon. If the seller fails to make the delivery at the time agreed on between the parties, the buyer will be at liberty to demand cither a cancelling of the sale or to be put into possession, if the delay is occasioned only by the deed of the seller. In all cases the seller is liable to damages if there result any detriment to the buyer oc- casioned by the non-delivery at the time agreed on. The seller is not bound to make a delivery of the thing if the buyer does not pay the price and the seller has not granted him any term for the payment. Neither shall he be obliged to the delivery, even if he has granted a term for the payment, if since the sale the buyer is become a bankrupt or is in a state of insolvency, so that the seller would be in imminent danger of losing the price of the same, unless the buyer should give hiin security to pay at the time agreed on. The thing must be delivered in the same state in which it was at the time of the sale ; that is to say, without any change occasioned by the act or fault of the seller. From the day of sale all the profits belong to the purchaser. The obligation of delivering the thing includes the accessories and dependencies without which it would be of no value or service, and likewise everything that has been designed to its perpetual use. The seller is bound to deliver the full extent of the premises as specified in the contract, under the modifications hereafter expressed. If the sale of an immovable has been made with indication of the extent of the premises at the rate of so much per measure, the seller is obliged to deliver to the buyer, if he requires it, the quantity mentioned in the contract, and if he cannot conveniently do it, or if the buyer does not require it, the seller is obliged to suffer a diminution proportionate to the price. If, on the other hand, there exists an extent of more than what is specified in the contract, the buyer has a right either to give the supplement of the price or to recede from the contract, should the overplus be upwards of a twentieth part of the extent which is declared. In all other cases, whether the sale be of a certain and limited body or of distinct and sep- arate objects, whether it first set forth the measure or the designation of the object followed by its measure, the expression of the measure gives no room to any supplement of price in favor of the seller for the overjilus of the measure, neither can the purchaser claim a diminution of the price on a deficiency of the measure, unless the real measure comes short of that expressed in the contract by one-twentieth part, regard being had to the totality of the objects sold ; pro- vided there be no stipulation to the contrary. There can be neither increase nor diminution of price on account of disagreement in measure when the object is designated by the adjoining tenements and sold from boundary to boundary. In the case where there is room for an augmentation of price for the surplus of the measure, the buyer has the option to give the supplement or to recede from the contract. In all cases where the buyer has a right to recede from the contract the seller is bound to make him restitution not only of the price, if already received, but also of the expenses occa- sioned by the contract. The action for supplement of the price on the part of the seller and that for diminution of the price or for the cancelling of the contract on the part of the buyer, must be brought within one year from the day of the contract, otherwise it is barred. If two pieces of ground have been sold by one and the same contract, with the expression of tlie measure for each, and there be found a less quantity in one, and a larger one in the other, the deficiency of the one is supplied by the overplus of the other, as far as it goes ; and the action, either in supplement or in abatement of the price, takes place only according to the rules above established : La. 2477-2499. § 4568. At whose Risk the Thing is after the Sale is Completed. As soon as the contract of sale is completed, the thing sold is at the risk of the buyer, but with the following modifications : — S5 546 TRANSFERS AND LIENS. Until the thing sold is delivered to the buyer the seller is obliged to guard it as a faithful administrator; and if, through want of this care, the thing is destroyed, or its value diminished, the seller is responsible for the loss. The seller is released from this degree of care when the buyer delays obtaining the posses- sion ; but he is still liable for any injury which the thing sold may sustain through gross neglect on his part. If it is the seller who delays to deliver the thing, and it be destroyed, even by a fortuitous event, it is he who sustains the loss, unless it appear certain that the fortuitous event would equally have occasioned the destruction of the thing in the buyer's possessi(m after delivery. A sale made with a suspensive condition does not transfer the property to the buyer until the fulfilment of the condition. If the thing be destroyed before this happens the loss is sustained by the seller. If the thing be only deteriorated when the condition is accomplished the buyer has the choice either to take it iu the state in which it is, or to dissolve the contract. If it has undergone any improvement without the agency of the seller, the buyer has the advantage of this improvement without having to pay any increase of price. In alternative sales, whether the choice be left to the seller or be expressly granted to the buyer, the first of the two things which perishes after the contract is a loss to the seller, and he must give up that which remains. But if that which remains also perish, it is the buyer's loss, and he must pay the price of it. In the case specified in the above article, when the choice is reserved to the buyer, he may recede from the contract if one of the things has perished, provided he has not delayed to be put in possession: La. 2407-2473. § 4569. Warranty. See also Art. 145, the provisions of which apply, in Louisiana, to personal property also. If the purchaser of land loses part of it from defect of title, he may claim either a rescission of the entire contract or a reduction of the price according to the relative value of the land so lost : Ga. 2643. If there is no express covenant of warranty, the purchaser must exercise caution in detecting defects ; the seller, however, in all cases (unless expressly or from the nature of the transaction excepted), warrants (1) that he has a valid right and title to sell ; (2) that the article sold is merchantable, and reasonably suited to the use intended ; (3) that he knows of no latent de- fects undisclosed : Ga. 2G51. Covenants of warranty should be so construed as to require and encourage the utmost good faith in all contracting parties : Ga. 26.53. A warranty is an engagement by wliich a seller assures to a buyer the existence of some fact afi"ecting the transaction, whether past, present, or future. Except as prescribed by this article, a mere contract of sale or agreement to sell does not imply a warranty. One who sells or agrees to sell personal property, as his own, thereby warrants that he has a good and unincumbered title thereto. One who sells or agrees to sell goods by sample thereby warrants the bulk to be equal to the sample. One who sells or agi-ees to sell personal property, knowing that the buyer relies upon his advice or judgment, thereby warrants to the buyer that neither the seller, nor any agent em- ployed by liim in the transaction, knows the existence of any fact concerning the thing sold which would, to his knowledge, destroy the buyer's inducement to buy. One who agrees to sell merchandise not then in existence, thereby warrants that it shall be sound and merchantable at the place of production contemplated by the parties, and as nearly so, at the place of delivery, as can be secured by reasonable care. One who sells or agrees to sell an article of his own manufacture thereby warrants it to be free from any latent defect, not disclosed to the buyer, arising from the process of manufacture, and also that neither he nor his agent in such maimfacture has knowingly used improper materials therein. One who manufactures an article under an order for a particular purpose warrants by the sale that it is reasonably fit for that purjiose. One who sells or agrees to sell merchandise inaccessible to the examination of the buyer thereby warrants that it is sound and merchantable. SALES. 547 One who sells or agrees to sell auy article to which there is affixed or attached a trade-mark thereby warrants that mark to be genuine and lawfully used. One who sells or agrees to sell any article to which there is affixed or attached a statement or mark to express the quantity or quality thereof, or the place where it was, in whole or in part, produced, manufactured, or prepared, thereby warrants the truth thereof. One who sells or agrees to sell an instrument purporting to bind any one to the performance of an act thereby warrants that he has no knowledge of any facts which tend to prove it worthless, such as the insolvency of any of the parties thereto, where that is material, the extinction of its obligations, or its invalidity for any cause. One who makes a business of selling provisions for domestic use warrants by a sale thereof, to one who buys for actual consumption, that they are sound and wholesome. One who sells the good will of a business thereby warrants that he will not endeavor to draw off any of the customers. Upon a judicial sale, the only warranty implied is that the seller does not know that the sale will not pass a good title to the property. A general warranty does not extend to defects inconsistent therewith of which the buyer was then aware, or which were then easily discernible by him without the exercise of peculiar skill; but it extends to all other defects : Cal. 6763-6778 ; Dak. Civ. C. 1003-1018. § 4570. Of the "Warranty in Case of Eviction from the Thing Sold. (See also Arts. 145,150.) Eviction is the loss suffered by the buyer of the totality of the thing sold, or of a part thereof, occasioned by the right or claims of a third person : La. 2500. If the buyer be evicted from a part only of the thing sold, and it be of such consequence relatively to the whole, that the buyer would not have purchased it, without the part from which he is evicted, he may have the sale cancelled. Not only eviction from part of the thing sold, but eviction from that which proceeds from it, is included in the warranty. But if the thing sold be succession rights, the eviction which the buyer might suffer from any particular thing found among the property of the succession does not give rise to the war- ranty, because in this case the thing sold is only the succession right, which includes only such things as belong really to the succession. If in case of eviction from a part of the thing, the sale is not cancelled, the value of the part from which he is evicted is to be reimbursed to the buyer according to its estimation, pro- portionably to the total price of sale. If the inheritance sold be incumbered with non-apparent servitudes, without any declaration having been made thereof, if the servitudes be of such importance that there is cause to pre- sume that the buyer would not have contracted if he had been aware of the incumbrance, he may claim the cancelling of the contract, should he not prefer to have an indemnification. Other questions arising from a claim for damages resulting from the non-execution of the contract of sale shall be decided by the general rules established under the title : Of Contracts : La. 2511-6. § 4571. Breach of Warranty. A breach of waiTanty, express or implied, does not annul the sale it executed, but gives the pureliaser a riglit to damages. It may be pleaded in abate- ment of the purchase-money. If the sale be executory, it is a good reason for the purchaser to refuse to accept possession of the goods : Ga. 2652. Any vice or defect in the thing sold which renders it either absolutely useless or its use so inconvenient and impci'fect that it is reasonable to suppose that the purchaser would not have contracted had he knowledge of its existence, is such a latent defect as good faith requires the seller to disclose : Ga. 2654. Patent defects are not covered by a general express warranty, unless intended to be so covered. In proof of this intention parol evidence is admissible : Ga. 2655. Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must he supposed that the buyer would not have purchased it had he known of the vice. Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices. The buyer cannot institute the redhibitory action on account of the latent defects which the seller has declared to him before or at the time of the sale. Testimonial proof of this declara- tion may be received. 548 TRANSFERS AND LIENS. With regard to inanimate tilings, the latent defects which give rise to the redhihitory action are in general all such as are comprised in the definition above expressed. The latent defects of animals are divided into two classes, — vices of body and vices of character. The vices of body are distinguished into absolute and relative. Absolute vices are those of which the bare existence gives rise to the redhibitory action. Relative vices are those which give rise to it only in proportion to the degree in which they disable the object sold. The absolute vices of horses and mules are short wind, glanders, and founder. The other vices of body in animals are included in the above definition. The vices of character which give rise to the redhibition of animals are comprised in the definition above given. The declaration made in good faith by the seller that the thing sold has some quality which it is found not to have, gives rise to a redhibition, if this quality was the principal motive fur making the purchase. The buyer who institutes the redhibitory action must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately fol- lowing the sale, it is presumed to have existed before the sale. The seller who knew not the vices of the thing is only bound to restore the price, and to reimburse the expenses occasioned by the sale, as well as those incurred for the preservation of the thing, unless the fruits which the purchaser has drawn from it be sufficient to satisfy those expenses. If the thing affected with the vices has perished through the badness of its quality, the sel- ler must sustain the loss. If it has perished by a fortuitous event before the purchaser has instituted his redhibitory action, the loss must be borne by him. But if it has perished, even by a fortuitous event, since the commencement of the suit, it is for the seller to bear the loss. The redhibitory action must be instituted within a year at the farthest, commencing from the date of the sale. This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser. Nor where the seller, not being domiciliated in the State, shall have absented himself before the expiration of the year following the sale ; in which case the prescription remains suspended during his absence. The redhibition of animals can only be sued for within two months immediately following the sale. The redhibitory action may be commenced after the loss of the object sold, if that loss was not occasioned by the fault of the purchaser. Redhibition does not take place in the cases of the sales made under a seizure by order of a court of justice. The redhibitory action is not divisible among the heirs of the purchaser, — that is to say, they must all concur in it, and no one of them can bring it for his part only. The redhibitory action may be brought against the heirs of the vendor collectively or against one of them at the choice of the purchaser. The redhibitory vice of one of several things sold together gives rise to the redhibition of all, if the things wore matched, — as a pair of horses or a yoke of oxen : La. 2520-2540. Of the Vices of the Thing sold which occasion a Reduction of the Price. Whether the defect in the thing sold be such as to render it useless and altogether unsuited to its pur- pose, or whether it be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price. The buyer may also content himself with resorting to this action when the quality which the thing sold has been declared to possess and which it is found to want, is not of such importance as to induce him to demand a redhibition. The purchaser who has contented himself with demanding a reduction of the price cannot afterwards maintain the redhibitory action. But in a redhibitory suit the judge may decree merely a reduction of the price. The action for a reduction of price is subject to the same, rules and to the same limitations as the redhibitory action : La. 2541-4. SALES. 549 Of the Vices of the Things sold which the Seller has concealed from the Buyer. Tho seller who knows the vice of the thing he sells and omits to declare it, besides the resti- tution of the price and repayment of the expenses is answerable to the buyer in damages. In this case the actiou for redhibition may be commenced at any time, provided a year has not elapsed since the discovery of the vice. This discovery is not to be presumed ; it must be proved by the seller. A declaration made by the seller that tlie thing sold possesses some quality which he knows it does not possess comes within the definition of fraud, and ought to be judged according to the rules laid down on the subject under the title : Of Contracts. It may, according to circumstances, give rise to the redhibition or to a reduction of the price, and to damages in favor of the buyer. The renunciation of warranty made by the buyer is not obligatory where there has been fraud on the part of the seller : La. 2545-8. § 4572. Rights and Obligations of the Buyer. A buyer must pay the price of the thing sold on its delivery, and must take it away within a reasonable time after the seller otfei-s to deliver it. On an agreement for sale with warranty, the buyer has a right to inspect the thing sold at a reasonable time before accepting it, and may rescind the contract if the seller refuses to permit him to do so. The breach of a warranty entitles the buyer to rescind an agreement for sale, but not an executed sale, unless the warranty was intended by the parties to operate as a condition : Cal. 6784-6 ; Dak. Civ. C. 1019-1021. Civil Law. The obligations of the buyer are : — 1 . To pay the price of sale. 2. To receive delivery of the thing, and to remove it if it be an object which requires re- moval, and to indemnify the seller for what he has expended in preserving it for him. The price ought to be paid on the day and at the place mentioned in the sale. If no stipulations have been made on that point at the time of the sale, the buyer must pay at the time and at the place where the delivery is to be made. On failure of the buyer to pay the price, the seller may compel him to do it by offering to deliver the thing to him, if that has not been already done. If, after the contract and before the seller has been required to deliver the thing, it ceases to be susceptible of delivery without his fault, the buyer is still bound to pay him the price. The buyer owes interest on the price of the sale until the payment of the capital in the three following cases : — 1. If it has been so agreed at the time of the sale. 2. If the thing sold produces fruits or any other income. 3. From the date of the sale when the price is then due. When the seller has granted to the buyer a term for the payment, the interest begins to run from the end of that term. The purchaser who neglects to obtain delivery of the thing sold after having been put in de- fault is answerable to the vendor for tlie damage which he may sustain on that account, and for the reimbursement of the expense which may have been incurred for the preservation of the thing. If, on account of delay in the payment of the price, the seller is obliged to retain or to resume the thing sold, and its value is diminished, the buyer is bound to make good this diminution to the amount of the price which had been agreed upon : La. 2565. § 4573. Vendor's Lien. One who sells personal property has a special lien thereon, dependent on possession, for its price, if it is in his possession when the price becomes payable, and may enforce his lien in like manner as if the property was pledged to him for the price : Cal. 8049 ; Dak. Civ. C. 1804. (For record of conditional sales, see ^ 4553.) Special liens are given to vendors of cotton, as against merchants or factors : Tenn. 2761. Louisiana Law. He who has sold to another any movable property, which is not paid for, has a preference on the price of his property, over the other creditors of the purchaser, whether the sale was made on a credit or without, if the property still remains in the possession of the purchaser. 550 TRANSFERS AND LIENS. So that although the vendor may have taken a note, bond, or other acknowledgmcut lnj;n the buyer, he still enjoys the privilege. Any person who may sell the agricultural products of the United States in the city of New Orleans, shall be entitled to a special lien and privilege thereon to secure the payment uf the purchase-money, for and during the space of live days only, after the day of delivery ; within which time the vendor shall be entitled to seize the same in whatsoever hands or place they may be found, and his claim for the purchase-money shall have preference over all others. If the vendor gives a written order for the delivery of any such products and shall say therein that they are to bo delivered wdthout vendor's privilege, then no lien shall attach thereto. But if he allows the things to be sold, confusedly with a mass of other things belonging to the purchaser, without making his claim, he shall lose the privilege, because it will not be possible in such a case to ascertain what price they brought. If the sale was not made on credit, the seller may even claim back the things in kind, which were thus sold, as long as they are in ptissession of the purchaser, and prevent the re- sale of them; provided the claim for restitution be made within eight days of the delivery at farthest, and that the identity of the objects be established. When the things reclaimed consist in merchandise, which is sold in bales, packages, or cases, the clahn shall not be admitted if they have been untied, unpacked, or taken out of the cases and mixed with other things of the same natui'e belonging to the purchaser, so that their identity can no longer be established. But if the things sold are of such a nature as to be easily recognized, as household furni- ture, even although the papers or cloths which covered them at the time of delivery be removed, the claim for restitution shall be alhnved : La. 3227-523L If the buyer is disquieted in his possession, or has jnst reason to fear that he shall be dis- quieted by an action of mortgage, or by any other claim, he may suspend the payment of the price until the seller has restored him to quiet possession or caused the disturbance to cease, unless the seller prefer to give security. There is an e.Kceptiou to this rule, when the buyer has been informed, before the sale, of the danger of eviction. In the case mentioned in the preceding article, the seller who cannot receive the price from being unable to give security, may compel the buyer to deposit the price, subject to the order of the court, to await the decision of the suit. The purchaser may also require the deposit, to relieve himself from the payment of interest. If the purchaser has paid before the disturbance of his possession, he can neither demand a restitution of the price, nor security duriug the suit. If the buyer does not pay the price, the seller may sue for the dissolution of the sale : La. 2549-25GL In matters of sale of movable effects, the dissolution of the sale shall take place of right, as demanded, without its being in the power of the judge to grant any delay except that fixed by law : La. 2564. § 4574. Consideration. A valuable consideration is essential to a sale ; it must be eith(T definite, or an agreement made by wliich it can be made certain ; if its ascertainment becomes impossible, there is no sale : Ga. 2G4G. Inadequacy of price is no ground for rescission of a contract of sale, unless it is so gross as, combined with other circumstances, to amount to a fraud : Ga. 2647. § 4575. Payment. Unless credit is specifically agreed upon, or is the custom of the trade, the purchase-money is due immediately ; and the seller may demand payment before delivering the goods : Ga. 2648. § 4576. Stoppage in Transitu. If the goods are delivered before the price is paid, the seller cannot retake because; of failure to pay ; but until actual receipt by the purchaser, the seller may at any time arrest them on the way and retain them until the price is paid. If credit has been agreed to be given, but the insolvency of the purchaser is made known to tlie seller, he may still exercise this right : Ga. 2649. A bona-Jide assignee of the bill of lading of goods for a valuable consideration and without notice that the same were unpaid for and the SALES. 551 purcliaser insolvent, will be protected in his title against the seller's right of stoppage in transitu : Ga. 2(350. A seller or consignor of property, whose claim for its price or proceeds has not been extin- guished, may, upon the insolvenijy of the buyer or consignee becoming known to him after parting with the property, stop it while on its transit to the buyer or consignee, and resume possession thereof. A person is insolvent, within the meaning of the last section, when he ceases to pay his debts in the manner usual with persons of his business, or when he declares his inability or unwillingness to do so. The transit of property is at an end when it comes into the possession of the consignee, or into that of his agent, unless such agent is employed merely to forward the property to the consignee. Stoppage in transit can be effected only by notice to the carrier or depositary of the prop- erty, or by taking actual possession thereof. Stoppage in transit does nc»t, of itself, rescind a sale, but is a means of enfoi'cing the lien of the seller : Cal. 8070-S080 ; Dak. Civ. C 1815-9. § 4577. Entire and Divisible Contracts. The contract of sale may be entire or divisi- ble ; if entire, a failure in part voids the whole ; if divisible, the voidance is only in proportion and to the extent of the failure. The intcnticm of the parties determines which it is : Ga. 2641. In a sale of lauds, if the purcliase is per acre, a deficiency in the number of acres may be apportioned in tlie price ; if the sale is by the tract or entire body, otherwise. If the quan- tity is specified as " more or less," this qualification will cover any deficiency not so gross as to justify the suspicion of wilful deception or mistake amounting to fraud; in this event, the deficiency is apportiouable ; the purchaser may demand a rescission or an apportionment according to relative value : Ga. 2642. § 4578. Void Sales. Sales under Mistake. Mistake of law, if not brought about by the other party, is no ground for auuuUing tlie contract of sale ; mistake of a material fact may in some cases justify a rescission ; mere ignorance of a fact will not : Ga. 2636. Sales under Duress. Fraud or duress, by which the consent of a party has been obtained to a contract of sale, voids the sale : Ga. 2633. Duress consists in any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will : Ga. 2637. § 4579. The Bill of Sale. In Maryland, a bill of sale is sufficient if it contain the names of the parties, the consideration, a description of the property conveyed, be signed by the vendor, and dated : Md. 44,46. It must also be sealed : Md. ; it may be acknowledged : Md. 44,47-8. § 4580. Record. (For conditional sales, see § 4553.) The sale, if not accompanied by delivery, is invalid, except as between the parties (in Iowa, Washington, not valid as against creditors and innocent purchasers) unless recorded in the same way as chattel mortgages (Art. 453) : lo. 1923 ; Md. 44,45 and 49 ; Wash. 2327. The time of record is presumably the same when not specified ; but in Washmgton Terri- tory, a bill of sale must so be recorded within ten days after the sale, etc. In two states, aU deeds, bills of sale, or instruments affectinir personal property may be recorded, as above, but such record is not generally obligatory : Tex. 4341 ; Ga. 2710. And such permissive record is not constructive notice to any one (and hence not valid as against third parties, possession being retained) : Ga. An Affidavit of good faith must be made and appended as in $ 4534 : Md. 44,54. § 4581. Barter. Exchange is a contract by which the parties mutually give, or agree to give, one thing for another, neither tiling, or both things, being money only. The provisions of the Statute of Frauds apply to all exchanges in which the value of the thing to be given by either party is two hundred dollars or more. The provisions of the title on sale apply to exclianges (so, Ga. 2656). Each party has the rights and obligations of a seller as to the thing which he gives, and of a buyer as to that which he takes. 552 TRANSFERS AND LTENS. On an exchange of money, each party thereby warrants the genuineness of the money given by him : CaL 6804-7 ; Dak. Civ. C 1029-1032. §4582. Auctions. (See also § 4142.) Louisiana Law. The sale by auction is that which takes place when the thing is offered publicly to he sold to whomever will give the highest price. This sale is either voluntary or forced, — voluntary when the owner himself offers his prop- erty for sale in this manner ; ft)rced, when the law prescribes this mode of sale for certain property, such as that of minors. The sale by auction as it is made by officers of justice, is treated of separately under the chapter on Judicial Sales (see in Part IV.). The sale by auction, whether made at the will of the seller or by direction of the law, is subjected to the rules hereafter mentioned. It cannot be made directly by the seller himself, but must be made through the ministry of a public officer appointed for that purpose. This officer, after having received in writing from the seller the conditions of the sale, must proclaim them in a loud and audible voice, and afterwards propose that a bid shall be made fur the property thus offered. When the highest price offered has been cried long enough to make it probable that nf) higher will be offered, he who has made the offer is publicly declared to be the purchaser, and the thing sold is adjudicated to hiin. This adjudication is the completion of the sale; the purchaser becomes the owner of the article adjudged, and the contract is from that time subjected to the same rules vi'hich govern the ordinary contract of sale. If the adjudication be made on condition that the price shall be paid in cash, the auctioneer may require the price immediately before delivering possession of the thing sold. If the object adjudged is an immovable for which the law requires that the act of sale shall be passed in writing, the purchaser may retain the price, and the seller the possession, of the thing until the act be passed. This act ought to be passed within twenty-four hours after the adjudication if one of the parties require it ; he who occasions a further delay is responsible to the other in damages. In all cases of sale by auction, whether of movables or immovables, if the person to whom adjudication is made does not pay the price at the time required agreeably to the two pre- ceding paragraphs, the seller at the end of ten days, and after the customary notices, may again expose to public sale the thing sold, as if the first adjudication had never been made ; and if at the second crying the thing is adjudged for a smaller price than that which had been offered by the person to whom the first adjudication was made, the latter remains a debtor to the vendor for the deficiency and for all the expenses incun'ed subsequent to the first sale. But if a higher price is offered for the thing than that for which it was first adjudged, the first purchaser has no claim for the excess. At this second crying the first purchaser cannot be allowed to bid, either directly or through the intervention of another person. When a thing is exposed to public sale with notice that the buyer shall give indorsed notes for the price, he is bound, immediately after the sale, if required, to acquaint the auctioneer or the seller with the name of the person whom he offers for indorser, and if this indorser does not suit the seller, or in his absence the auctioneer, the adjudication is considered as not having been made. The refusal by the seller to receive the indorser whom the purchaser offers renders him re- sponsible in damages to the latter, if it be proved that the indorser proposed is good and solvent. The adjudication can only be made to a bidder present or properly represented. The person who bids in the name of another, without sufficient authority to bind him, is considered as having bought on his own account, and is answerable for all the consequences of the adjudica- tion : La. 2601-2G1.5. A sale by auction is a sale by public outcry to the highest bidder on the spot. A sale by auction is complete when the auctioneer publicly announces, by the fall of his hammer, or in any other customary manner, that the thine: is sold. Until the announcement mentioned in the last section has been made any bidder may with- draw his bid, if he does so in a manner reasonably sufficient to bring it to the notice of the auctioneer. SALES. 553 When a sale by auction is made upon written or printed conditions, such conditions cannot be modified by any oral declaration of the auctioneer, except so far as they are for his own benefit. If, at a sale by auction, the auctioneer, having authority to do so, publicly announces that the sale will be without reserve, or makes any announcement equivalent thereto, the highest bidder in good faith has an absolute right to the completion of the sale to him ; and upon such a sale bids by the seller or any agent for him are void. The employment by a seller of any person to bid at a sale by auction without the knowledge of the buyer, without an intention on the part, of such bidder to buy, and on the part of the seller to enforce his bid, is a fraud upon the buyer which entitles him to rescind his purchase. When property is sold by auction, an entry made by the auctioneer in his sale-book at the time of the sale, specifying the name of the person for whom he sells, the thing sold, the price, tlie terms of j^ale, and the name of the buyer, binds both the parties in the same manner as if made by themselves : Cal. 6792-8 ; Dak. Civ. C. 1022-8. § 4583. Of the Assignment or Transfer of Credits and other Incorporeal Rights. In the transfer of credits, rights, or claims to a third pci-son, the delivery takes place between tlie transferrer and the transferee by the giving of the title. The transferee is only possessed, as it regards third persons, after notice has been given to the debtor of the transfer having taken place. The transferee may nevertheless become possessed by the acceptance of the transfer by the debtor in an authentic act. If, previous to notice having been given of the transfer to the debtor, either by the trans- f>Trer or by the transferee, the debtor should have made payment to the transferrer, the debtor is discharged of the debt. The sale or transfer of a credit includes everything which is an accessory to the same, — as suretyship, privileges, and mortgages. He who sells a credit or an incorporeal right warrants its existence at the time of the trans- fer, though no warranty be mentioned in the deed. The seller does not warrant the solvency of the debtor unless he has agreed so to do. Wlien the solvency of a debtor is warranted by contract, such warrant extends only to the actual solvency of the debtt)r and not to his future solvency, unless the same be expressly sub- mitted to by the transferrer. If it be proved that the assignor who has not warranted the solvency of the debtor knew, or liad strong reasons to suspect, that the debtor was insolvent at the time of the assignment, the contract may be rescinded, and the assignor compelled to restore the price. When a man sells his right to a succession without particularly specifying the objects of which it consists, he only warrants his right as an heir. In case he who sells his right to a succession has already received any of the fruits of any ])roperty belonging to the same, and if any credit due to that succession has been paid to him, he shall be bound to repay the same to the purchaser unless the same has been excepted by the contract. He against whom a litigious right has been transferred may get himself released by pay- ing to the transferee the real price of the transfer, together with the interest from its date. A right is said to be litigious whenever there exists a suit and contestation on the same. The above provisions do not apply, — 1. When the transfer has been made either to a co-heir or to the co-propriotor of the right. 2. When such right has been transferred to a creditor as a payment for a debt due to hiin. 3. When the transfer has been made to the possessor of the estate subject to the litigious riglit: La. 2642-26.54. § 4584. Of the Giving in Payment. The giving in payment is an act by which a debtor gives a thing to the creditor, who is willing to receive it in payment of a sum which is due. That giving in payment differs from the ordinary contract of sale in this, that the latter is perfect by the mere consent of the parties, even before the delivery, while the giving in pay- ment is made only by delivery. From this distinction result consequences which are different in relation to the risk of the tiling sold, which risk, in this species of contract, never falls upon the creditor before delivery unless he has delayed beyond a reasonable time to obtain the thing. 554 TRANSFERS AND LIENS. This difference gives rise to another in the effect of these contracts in cases of the insolvency c>f the debtor. He may, although insi^lvent, lawfully sell for the price which is paid to liiui, but the law forbids to give in payment to one creditor to the prejudice of the others any other thing than the sum of money due. Except with these differences, the giving in payment is subjected to all the rules which govern the ordinary contract of sale : La. 2653-9. Exchange is a contract by which the parties to the contract give to one another one thing for another, whatever it be except money ; for in that case it would be a sale. An exchange takes place by the bare consent of the parties. If one of the exchangers, after having received the thing given to him in exchange, learns that the other exchanger is not the proprietor of that thing, he cannot be compelled to deliver that which he had promised to give in exchange ; he is only bound to return the thing which he has received. The exchanger who is evicted by a judgment of the thing he has received in exchange has his choice either to sue for damages or for the thing he gave in exchange. The rescission of the contract on accney, but also the expenses resulting from necessary repairs, those which have attended the sale, and the price of the improvements which have increased the value of the estate up to that increased value. When a vendor recovers the possession of his inheritance by virtue of the power of redemp- tion, he recovers it free from any mortgages or incumbrances created by the purchaser, pro- vided such possession be recovered within the ten years as above provided. If after the expiration of these ten years the vendor recover his estate with the consent of the purchaser, the estate remains liable for every mortgage and incumbrance laid upon it by the purchaser : La. 2.")G7-2583. § 4587. Rescission of Sales for Lesion. If tlie vendor has been aggrieved for more than half the value of an immovable estate by him sold, he has the right to demand the rescis- sion of the sale, even in case he had expressly abandoned the right of claiming such rescission, and declared that he gave to the purchaser the surplus of the thing's value. To ascertain whether there is a lesion beyond moiety tlie immovable must be estimated according to the state iu M^hich it was and the value which it had at the time of the sale. If it should appear that the immovable estate had been sold for less than one half of its just value, the purchaser may either restore the thing and take back the price which he has paid or make up the just price and keep the thing. Should the purchaser prefer to keep the thing by making up the just price, he must pay the interest of the additional price from the day when the rescission was deinanded. If he chooses rather to restore the thing and to receive the purchase-money, he shall be liable to restore the 556 TRANSFERS AND LIENS. fruits of the estate from the day of the demand, but the interest of his money shall also be paid to him from the same time. The rescission for lesion beyond moiety cannot take place in favor of the purchaser. Rescission for lesion beyond moiety is not graiited against sales of movables and produce, nor when rights to a succession have been sold to a stranger, nor in matter of transfer of credits, nor against sales of immovable property made by virtue of any decree or process of a court of justice. Actions for rescission of sales on account of lesion beyond moiety must be commenced vinthin four years. These four years with respect to minors begin only from the day they be- come of age. With respect to persons of full age, they begin from the day of the sale. This delay runs with and is not suspended by that granted for redemption. The seller who demands the rescission on account of lesion beyond moiety must resume the possession of the thing in the state in which it is. The buyer in this case is not bound for the injury sustained through his fault before the demand. He is only bound to make reimbursement for such injuries as he has turned to his own profit. The buyer is entitled to repayment for ameliorations which he has effected, although they be merely for pleasure and convenience. He may remain in possession of the thing sold until the seller has restored the price which he paid, together with his expenses. The provisions contained in the preceding section relative to the case where several co- proprietors have sold a thing, either jointly or separately, and to that where tlie vendor or the buyer has left several heirs, must likewise be applied to the exercise of the action of rescission for lesion beyond moiety : La. 2589-2600. Art. 459. Fraudulent Sales. § 4530. What is Fraud. Fraud may exist from misrepresentation by either party made with intent to deceive or which does deceive the other; and in the latter case it V(^)ids the sale, though the party was not aware that his statement was false. It may be by acts as well as words, and by any artifices designed to mislead. A misrepresentation not acted on is not ground for annulling the contract: Ga. 2634. Compare Art. 419. Concealment of material facts may in itself amount to a fraud (1) when direct inquiry is made and the truth evaded ; (2) when from any reason one party has a right to expect full communication of the fects from the other ; (3) where one party knows that the other is labor- ing under a delusion Avith respect to the property sold or the condition of the other party and yet keeps silence ; (4) where the concealment is of intrinsic qualities of the article wliieh the other party by the exercise of ordinary prudence and caution could not discover : Ga. 2635. Mistake of law, if not brought about by the other party, is no ground for annulling a con- tract of sale ; mistake of a material fact may in some cases justify a rescission; mere ignorance will not : Ga. 2636. A title obtained by fraud, though voidable in the vendee, will be protected in a hona-fide purchaser without notice : Ga. 2640. § 4591. Frauds upon Creditors. (See Insolvency, Part IV.) Every sale made with intent to defraud creditors of the vendor or prior or subsequent purchasers, if such intenticm is known to the vendee, is void as against such creditors, etc. : Ga. 2631. Compare $ 4503. Every transfer of jiroperty or charge thereon made, every obligation incurred, and every judicial proceeding taken with intent to delay or defraud any creditor, or other person, of his demands, is void against all creditors of the debtor and their successors in interest, and against any person upon whom tlie estate of tlie debtor devolves in trust for the benefit of otiiers than the debtor : Cal. 8439 ; Dak. Civ. C. 2023. A cr(Hlitor can avcnd the act or obligation of his debtor for fraud only where the fraud ob- structs the enforcement by legal process of his right to take the property affected by the trans- fer or obligation : Cal. 8441 ; Dak. Civ. C. 2025. (a) The Stat. 13 Eliz. C. 5, is substantially or in terms re-enacted in most of the states (every gift, grant, alienation, bargain, and conveyance of lands, tenements, and hereditaments, or of any lease, rent, common, or other profit or charge out of FRAUDULENT SALES. 557 the same, or of goods or chattels, by writing or otherwise, or bond given, suit commenced, or judgment or execution suffered, devised, or contrived of malice, fraud, covin, collusion, or guile, to delay or defraud creditors, purchasers, and others of their just and lawful actions, suits, debts, accounts, damages, penalties, forfeitures, etc., as against such creditors and others, are void and of no effect, any feigned consideration to the contrary notwithstanding): Vt. 4155 ; R.I,-173,1; N.Y. 2,7,3,1; N.J. Frauds, 12 ; Pa. App. Fraudulent Conveyances, 1-2 ; O. 4196 ; Ind. 4920 ; 111. 59,4 ; Mich. 6203 ; Wis. 2320 ; Kan. 43,2 ; Va. 114,1 ; W.Va. 96,1 ; N.C. 1545 ; Ky. 44,1,1 ; Tenn. 2424 ; Mo. 2497 ; Ark. 3374 ; Tex. 2465 ; Ore. 6,51 ; Nev. 297 ; Col. 1526 ; Ida. 1874-5, p. 609,18 ; Mon. G. L. 172 ; Uta. 1017; S.C. 1786; Ala. 2124; Miss. 1293; Fla. 30,1; Ariz. 2133. But nothing herein contained applies to conveyances, etc., made upon good consideration to persons acting in good faith without knowledge of fraud (13 Eliz. C. 5, § 5) : K Y. ih. 5 ; Pa. ib. 3 ; 111. 59,5 and 8 ; Va. ; W.Va. ; KC. 4 ; Ky. ; Tex. ; S.C. 1789 ; Fla. See also § 4598. So, in several others, in effect : (B) fraudulent and deceitful deeds, conveyances, and alienations of land, or of an estate or interest therein (or, in Connecticut and Nebraska, of goods or chattels), and charges upon lands or upon the rents and profits thereof, or suits, bonds, or judgments procured, made, or suffered, with intent to avoid a right, debt, or duty of any person, shall, as against such person, his heirs or assigns, be void : Vt. 1955 ; Ct. 18,3,1 ; Minn. 41,18; Neb. 1,32,17. So, in Georgia, (C) every conveyance of real or personal estate, in viTiting or otherwise, and every bond, suit, judgment, or execution or contract of any description had or made with intention to delay or defraud creditors, and such intention known to the party taking it, is void as against creditors ; but a bona-fide transaction on a valuable consideration, without notice or grounds for reasonable suspicion, is valid : Ga. 1952. Penalties. By the statute of Ehzabeth (13 Eliz. C. 5, $ 2), all parties to such fraudulent conveyances forfeit the whole value of goods conveyed, and one year's value of the land, half to the state, half to the party aggrieved, and are further liable to one half year's imprisonment. This is re-enacted in two states: Ct. 18,3,2 ; S.C. 1783. For other states, see Part V. § 4592. Of Land, to Defraud Purchasers, (a) In some states, the Stat. 27 Eliz. C. 4, § 2, is re-enacted (whereby every conveyance, grant, charge, lease, estate, incumbrance, and limitation of use, in or out of any lands, tenements, or here- ditaments [or goods and chattels : N.C, Tenn.], made to defraud and deceive pur- chasers of such lands, etc., or of an interest therein, is void, as against such purchasers for valuable or good consideration, any pretence or feigned considera- tion to the contrary notwithstanding) : N.J. Frauds, 13 ; N.C. 1546 ; Tenn. 2424; S.C. 1787 ; Miss. 1293 ; Fla. 30,2. (B) So, in most others, in effect; and every conveyance of any estate or interest in lands or the rents and profits thereof, or charge on land or the rents and profits, made with intention to defraud prior or subsequent purchasers for value of such lands, etc., as against such purchasers, shall be void : KY. 2,7,1,1 ; 0. 4196 ; Ind. 4915 ; Mich. 6174 ; Wis. 2297 ; Minn. 41,1 ; Kan. 43,2 ; Neb. 1,32,1 ; Cal. 6227 ; Ore. 6,40 ; Nev. 278 ; Col. 1510 ; Dak. Civ. C. 676; Ida. 1874-5, p. 606, § 1; Mon. G. L. 155; Uta. 1012 ; Ariz. 2114. But no such conveyance or charge is deemed fraudulent as against a subse- quent purchaser with actual or legal notice at the time of such purchase : N.Y. ih. 2 ; Ind. 4916 ; Mich. 6175 ; Wis. 2298 ; Minn. 41,2 ; Neb. 1,32,2 ; N.C. ; Mo. 2498 ; Ark. 3375 ; Cal. 6228 ; Ore. 6,41 ; Nev. 279 ; Col. 1511 ; Dak. Civ. C. 677; Ida. ib. 2 ; Mon. G. L. 156; Ariz. 2115. Unless, in all but Nebraska, the grantee, or person to be benefited by such conveyance, was privy to the fraud. 558 TRANSFERS AND LIENS. If the person claiming under the conveyance alleged fraudulent take possession, that is notice : N.C A statute of Missouri provides that any conveyance of land made by a citizen of the State to a citizen of any other state without a valuable bona-fide consideration, and made for the purpose of giving jurisdiction to the United States courts and thereby harassing the occupant of the land, shall be inoperative, except as to the transferee and his heirs, in whom such conveyance shall vest an absolute irreclaimable fee-simple title, which notwith- standing any release or reconveyance by the transferee may be asserted by his heirs after his death as against the grantor or his heirs or assigns : Mo. 2506. § 4593, Revocable Conveyances. (Compare also § 4594.) (A) In three states, the Stat. 27 Eliz. C. 4, § 5, is re-enacted in terms (whereby any person making a con- veyance, etc., of land, etc., with a clause of revocation, determination, or alteration at his pleasure of such conveyance, etc., after such conveyance making another conveyance to a purchaser for value or good consideration, the first conveyance, as against such pur- chaser, is void : N.J. Frauds, 14 ; S.C. 1790 ; Fla. 30,3. Provided, nevertheless, that no lawful mortgage made in good faith upon good consideration and without fraud shall be thus impeached) : N.J., S.C. (B) So, in many states, iu effect : every conveyance or charge of or upon any estate or interest in lands, containing any provision for the revocation, determi- nation, or alteration of such estate or interest or any part thereof, at the will of the grantor, is void as against subsequent purchasers from such grantor for a valu- able consideration of any estate or interest so liable to be revoked or determined, although the same be not expressly revoked, determined, or altered by such grantor by virtue of the power reserved or expressed in such prior conveyance or charge: KY. 2,7,1,3; Ind. 4917; Mich. 6176; Wis. 2299; Minn. 41,3 ; Cal. 6229 ; Ore. 6,42 ; Nev. 280 ; Col. 1512 ; Dak. Civ. C. 678 ; Ida. 1874-5, p. 607,3; Mon. G. L. 157 ; Ariz. 2116. (C) When a power to revoke a conveyance of lands or the rents and profits thereof, and to re-convey the same, is given to any other person than the grantor in such conveyance, and such person thereafter convey the same lands, rents, or profits to a purchaser for a valuable consideration, such stibsequent conveyance is valid as if the power of revocation were recited therein and the intent to revoke the former conveyance expressly declared (see also § 1656) : N.Y. ih. 4 ; Ind. 4918; Mich. 6177; Wis. 2300; Mmn. 41,4; Cal. r Ore. 6,43 : Nev. 281 ; Col. 1513 ; Dak. ; Ida. ih. 4 ; Mon. G. L. 158 ; Ariz. 2117. (D) If a conveyance to a purchaser be made as above by the grantor or other person with power to revoke, before such person is entitled to execute such power, it is nevertheless valid from the time the power vests in such person, as if then made : N.Y. ih. 5 ; Ind. 4019 ; Mich. 6178 ; Wis. 2301 ; Minn. 41,5 ; Cal. 6230 ; Ore. 6,44; Nev. 282 ; Col. 1514; Dak. Civ. C. 679 ; Ida. ih. 5; Mon. G. L. 159 ; Ariz. 2118. § 4594. Conveyances in Trust for the Grantor. (See also in Part IV., In- solvmcy) All deeds of gift, transfers, assignments, or other conveyances, verbal or written, of goods, chattels, or things in action, made m trust for or for the use of the person making the same, are void as against the creditors existing or sub- sequent of such person: N.Y. 2,7,2,1; N.J. Vmwf?.s, 11 ; 0. 4195 ; Iiid. 4921 ; Mich. 6184 ; Wis. 2306 ; Minn. 41,14 ; Kan." 43,1 ; Neb. 1,32,7 ; Mo. 2496 ; Ark. 3373 ; Ore. 6,45 ; Nev. 288 ; Col. 1520 ; Wash. 2324 ; Ida. 1874-5, p. 608,11 ; Mon. G. L. 165 ; Uta. 1013 ; S.C. 1957 ; Ala. 2120 ; Ariz. 2124. Note. — "In Kansas, it seems, they are absolutely void. FRAUDULENT SALES. 559 § 4595. Conveyance in Trust for Creditors. A deed of trust, mortgage, or other security made to secure any pre-exi.sting debt, whether absolute or conditional, due or not due, is fraudulent and void as to the creditors of the grautor when any creditor provided for thereby is required to make any release or do any other act impairing his existing rights, before par- ticipating in or receiving the securities therein provided for him : Ala. 2125. See in Part IV., Insolvency. Every assignment or transfer by a debtor insolvent at the time of real or personal property to any person in trust for or for the benefit of creditors, wherein any trust or benefit is reserved to the assignor or any person for him, is fraudulent and void as against creditors : Gra. 1952. § 4596. Assignments. (See Part IV., Insolvency.) Every general assignment made by a debtor by which a preference or priority of payment is given to one or more creditors over the remaining creditors of the grantor, shall be and inure to the benefit of all the creditors equally : Tenn. 242.5 ; Ala. 2126 ; 1883,118. So, in Kentucky, every sale, mortgage, or assignment made, and every judgment sufi'ered, by a debtor, in contemplation of insolvency and with the design to prefer one creditor to the exclusion in whole or part of others, operates as an assignment of all the property of the debtor and inures to the benefit of all his creditors equally : Ky. 44,2,1. But this does not apply to a mortgage in good faith made to secure any debt created at the same time with the mortgage and duly recorded within thirty days : Ky., Ala. § 4597. Fraudulent Conveyances of Personalty. Every gift or conveyance of goods and chattels on consideration not deemed valuable in law is, in a few, taken to be fraudulent unless it be by will duly proved, or deed in writing duly acknowledged or proved, and recorded like a deed of realty ; unless possession shall really and bona fide remain with the donee (cf. §§ 4501,4.580) : IlL 59,6"; Tenn. 2430 ; Mo. 2499. [In Nebraska, fraudulent sale or removal of goods made with intent to cheat or delay creditors is made an offence punishable as larceny : Neb. 183.3,46,1 ; see generally in Part V.] And even though recorded, deeds of gift or loans of personal property are void against credi- tors and purchasers of the donor or borrower if made with intent to defraud : Mo. 2501. § 4598. General Provisions. Every conveyance, charge, instrument, or pro- ceeding declared by this article to be void as against creditors or purchasers is, in many states, equally void as against the heirs, successors, personal representa- tives, and assignees of such creditors and purchasers : N.Y. 2,7,3,3 ; N.J. Frauds, 12-13 ; Ind. 4922; Mich. 6205; AVis. 2322; Minn. 41,19 ; Neb. 1,32,19; Ore. 6,53 ; Nev. 299 ; Col. 1528 ; Ida. ib. 19 ; Mon. G. L. 173 ; Uta. 1018 ; Ariz. 2135. The question of fraudulent intent in all cases arising under this article is, in most states, deemed a question of fact, not of law ; but no conveyance or charge can be adjudged fraudulent as against creditors and purchasers, solely oil the ground that it was without valuable consideration : N.Y. 2,7,3,4 ; Ind. 4924 ; Mich. 6206; Wis. 2323; Minn. 41,20; Neb. 1,32,20; Cal. 8442; Ore. 6,54; Nev. 300; Col. 529; Dak. Civ. C. 2026; Ida. ih. 20; Mon. G. L. 174; Ariz. 2136. Nothing in this or the preceding article is, in most states, to be construed in any manner to affect or impair the title of a purchaser for value without notice of the fraudulent intent of his immediate grantor or of the fraud rendering void his title : N.Y. 2,7,1,10 ; 2,7,3,5 ; N.J. Frauds, 15 ; Ind. 4923 ; Mich. 6207 ; Wis. 2324 ; Minn. 41,21 ; Neb. 1,32,21 ; N.C. 1548 ; Mo. 2502 ; Ark. 3379 ; Tex. 2465; Ore. 6,55 ; Nev. 301 ; Col. 1530 ; Dak. Civ. C. 680 ; Ida. ih. 21 ; Mon. G. L. 175 ; S.C. 1789; Ariz. 2137. Nor does this article extend to hona-fide conveyances for value of real and personal property : 111. 59,8; Mo. ; Ark.; Fla. 30,2. 560 TRANSFERS AND LIENS. § 4599. Sales in Fraud of Creditors. In Delaware, no sale, whether with or without bill of sale, of any goods or chattels, is good in law except as against the vendor, or shall change the property in such gcjods, unless a valuable consideration be paid or in good faith secured, and unless the goods scjld are actually delivered into the vendee's possession as soon as may be after the sale ; and if such goods so sold afterwards come into and continue in the vendor's j^ossession, they are liable to the demands of all his creditors : Del. 63,4. So, in many states, every conveyance or sale made by a vendor of goods and chattels in his possession or under his control, unless accompanied by immediate delivery and followed by actual and continued change of possession, is presumed fraudulent aud void as against creditors of the vendor or subsequent purchasers in good faith ; and shall be conclusive evidence of fraud, unless it shall be made to appear, on the part of the person claiming under such sale or assignment, that it was made in good faith and without any intent to defraud such creditors or purchasers : N.Y." 2,7,2,5 ; Ind. 4911 ; Mich." 6190 ; Wis." 2310 ; Minn." 39,1 ; 41,15 ; Kan. 43,3 ; Neb." 1,32,11 ; Mo. 2502 and 2505. But in several, it is conclusive evidence of fraud as against such creditors, etc , in all cases : Cal. 8440 ; Nev. 292 ; Col. 1523 ; Dak. Civ. C. 2024 ; Ida. 1874-5, p. 609,15 ; Mon. G. L. 169 ; Uta. 1016 ; La. 2247 ; Ariz. 2128. The word creditors here includes all pei'sons who may be creditors of such vendor or assignor at anytime while such goods were in his possession or under his control : N.Y. 2,7,2,6 ; Ind. 4912 ; Mich. 6191 ; Wis. 2.311 ; Minn. 41,16 ; Neb. 1,32,12 ; Nev. 293 ; Col. 1524 ; Ida. ih. 16 ; Mon. G. L. 170 ; Uta. ; Ariz. 2129. These last two clauses do not apply to contracts of bottomry or respondentia, nor to assignments or hypothecation of vessels or goods at sea or beyond the State ; provided (except in California, Dakota) the assignee or mortgagee shall take possession of such ship, vessels, or goods as soon as may be after their arrival within the state : N.Y. 2,7,2,7; Mich. 6194; Wis. 2312; Minn. 41,17; Neb. ih. 13; Mo. 2504; Cal.; Dak. Sales or exchanges of movable property are void against hona-fide purchasers and creditors unless possession is given before such hona-fide purchaser or creditor acquires his right by possession. What a delivery of possession is depends on the nature of the property ; it may be constructive or actual; the delivery of tlie key of a store in which it is contained, or an order accepted by the person in whose custody it is held, if at the order of the vendor, is good evidence of delivery : La. 2247. Note. — " Applies also to mortgages unrecorded. § 4600. Public OfiQcers. In New Jersey, all conveyances by officers holding, or who have held, public offices, and who have embezzled public money, whether on valuable con- sideration or not, are void as against tlie state, county, or town, etc., injured, except as against a hona-fide purchaser, mortgagee, or judgment creditor for value, aud without notice of the enibe5;zlement : N.J. Frauds, 16 ; see in Part III. § 4601. Record. No conveyance required by the provisions of this article, or of Articles 453 and 4.30, to be recorded is valid until filed for record, except between the parties and their representatives, nor even then, if shown to be made with an intent to defraud prior creditors or purchasers, as against such creditors, etc. : Ark. 3378. § 4602. Definitions. (See also §§ 1300,1301,1471,1551-1553.) The word lands, as used in this article, is specially provided, in several states, to include lands, tenements, and hereditaments: N.Y. 2,7,3,6; Wis. 2325; Neb. 1,32,22 ; Nev. 302; Col 1531; Ida. ih. 22 ; Mon. G. L. 176; Ariz. 2138. And all possessory rights for mining or other purposes : Nev., Ida., Mon. And the words estate and interest in lands, to embrace every estate and interest, freehold and chattel, legal and equitable, present and future, vested and contingent, in lands as above defined : N.Y., Wis., Neb., Nev., Col., Ida., Mon., Ariz. LIENS. 561 And the term conveyance, to embrace every instrument in writing, except a last will and testament, whatever may be its form, and by whatever name it may be known in law, by which any estate or interest in lands is created, aliened, assigned, or sur- rendered : N.Y. 2,7,3,7; Mich. 6208 ; Wis. 2326 ; Minn. 41,22 ; Neb. 1,32,23 ; Nev. 303; Col. 1532; Ida. ib. 23; Mon. G. L. 177; Ariz. 2139. Art. 462. Liens. § 4620. Definition. A lien is defined to be a charge imposed upon specific prop- erty by which it is made security for the performance of an act : Cal. 11180 ; Uta. C Civ. P. 1056; N.M. 1519. A lien is a charge imposed upon specific property by which it is made security for the per- formance of an act. (But this does not include a charge imposed by a transfer in trust : Cal. V. 3, Amt.) Liens are either general or special. A g^eneral lien is one which the holder thereof is entitled to enforce as a security for the performance of all the obligations, or aU of a particular class of obligations, which exist in his favor against the owner of the property. A. special lien is one which the holder thereof can enforce only as security for the per- formance of a particular act or obligation, and of such obligations as may be incidental thereto. Where the holder of a special lien is compelled to satisfy a prior lien for his own protection he may enforce payment of the amount so paid by him as a part of the claim for wWch his own lien exists. Contracts of mortgage, pledge, bottomry, or respondentia are subject to all the provisions of this chapter : Cal. '7872-7 ; Dak. Civ. C. 1697-1701. See in Part IV., Division L, for other Louisiana provisions ; and in Part IV., Di- vision II., for privileges when the debtor is insolvent. § 4621. Creation of Liens. A lien is created, — 1. By contract of the parties ; or, 2. By operation of law. No hen arises by mere operation of law until the time at which the act to be secured thereby ought to be pei'formed. An agreement may be made to create a lien upon property not yet acquired by the party agreeing to give the lien or not yet in existence. In such case the lien agreed for attaches from the time when tlie party agreeing to give it acquires an interest in the thing to the extent of such interest. A lien may be created by contract, to take immediate effect, as security for the performance of obligations not then in existence : Cal. 7781-4 ; Dak. Civ. C. 1702-5. § 4622. Effect of Liens. Notwithstanding an agreement to the contrary, a lien, or a contract for a lien, transfers no title to the property subject to the lien. All contracts for tlie forfeiture of property subject to a lien, in satisfaction of the obligation secured thereby, and all contracts in restraint of the right of redemption from a lien, are void. (Except in a case of pledge : Dak.) Tlie creation of a lien does not of itself imply that any person is bound to perfomi the act for which the lien is a security. The existence of a lien ujion property does not of itself entitle the person in whose favor it exists to a lieu upon the same property for the performance of any other obligation than that which the lien originally secured. One who holds property by virtue of a lien thereon is not entitled to compensation from the owner thereof for any trouble or expense which he incurs respecting it, except to the same ex- tent as a borrower, under sections 4333 and 4334 : Cal. 7888-7892 ; Dak. Civ. C. 1706-1710. § 4623. Priority. Other things being equal, different liens upon the same property have priority according to the time of their creation, except in cases of bottomry and respondentia : Cal, 7897; Dak. Civ. C. 1711. 36 562 TRANSFERS AND LTENS. § 4624. Of Resort to Different Funds. Where one has a lien upon several things, and other persons have subordinate liens upon, or interests in, some but not all of the same things, the person having the prior lien, if he can do so without risk of loss to himself or of injustice to other persons, must resort to the property in the foUovi'ing order on the demand of any party interested : — 1. To the things upon which he has an exclusive lien ; 2. To the things which are subject to the fewest subordinate liens ; 3. In like manner inversely to the number of subordinutt! liens upon the same thing ; and, 4. When several things are within one of the foregoing classes, and subject to the same number of liens, resort must be had, — (1) To the things which have not been transferred since the prior lien was created; (2) To the things which have been so transferred without a valuable consideration ; and, (3) To the things which have been so transferred for a valuable consideration in the inverse order of the transfer: Cal. 7899; Dak. Civ. C. 1713. § 4625. Redemption from Lien. Every person having an interest in property subject to a lien has a riglit to redeem it from the lien at any time after the claim is due, and before his right of redemption is foreclosed. One who has a lien inferior to another upon the same property has a right, — 1. To redeem the property in the same manner as its owner might from the superior lien ; and, 2. To be subrogated to all the benefits of the superior lien, when necessary for the protec- tion of his interests, upon satisfying the claim secured tliereby. Redemption from a lien is made by performing, or offering to perform, the act for the performance of which it is a security, and paying, or offering to pay, the damages, if any, to which the holder of the lien is entitled for delay : Cal. 7903-5 ; Dak. Civ. C. 1714-6. § 4626. Extinction of Liens. A lien is to be deemed accessory to the act for the per- formance of which it is a security, whether any person is bound for such performance or not, and is extinguishable in like manner with any other accessory obligation. The sale of any property on which there is a lion in satisfaction of the claim secured thereby, or, in case of personal property, its wrongful conversion by the person holding the lien, extinguishes the lien thereon. A lien is extinguished by the lapse of the time within which, under the provisions of the Code of Civil Procedure, an action c;\n be brought upon the principal obligation. The partial performance of an act secui'ed by a lien does not extinguish the lien upon any part of the property subject thereto, even if it is divisible. The voluntary restoraticm of property to its owner by the holder of a lien thereon, dependent upon possession, extinguishes tlie lien as to such property, unless otherwise agreed by the parties, and extinguislies it, notwithstanding any such agreement, as to creditors of the owner and persons subsequently acquiring a title to the property, or a lien thci'eon, in good faith and for a good consideration : Cal. 7909-7913 ; Dak. Civ. C 1717-1721. § 4627. List of Liens. The code of Georgia enumerates liens recognized by the laws as follows : (1) liens in favor of the state or municipal corporations for taxes (see Part III.) ; (2) liens of creditors by judgment or decree (see Part IV.) ; (3) laborers' liens (see § 4640 and in Part III.) ; (4) mechanics' liens on real property (see Art. 196) (so in two others : Cal. 8059 ; Dak. Civ. C. 1814). So, in Vermont, there is an employees' lien for wages : Vt. 1991 ; and see in Part III. ; and mechanics' liens on personal property (see § 4038) : Ga. ; and liens in favor of contractors, tnaterial-inen, nuichinists, and manufacturers of machinery (see Art. 190) : Ga. ; (5) liens in favor of proprietors of saw-inills, planing-inills, and on the pro- ducts (^ 1901) ; (0) liens in favor of landlords (Art. 203, and § 19.54) ; (7) innkeepers' liens (§ 439:j) (so, in N.H. 139,1 ; Dak. Civ. C. 1812) ; so, of boarding-house keepers ($ 4393) : Dak. ; so, of livery-stable kee])ers (§ 4042) : Ga. ; so, of i)asturers of cattle or horses or keepers of other animals ($ 4642): N.H. K39,2 ; (8) so, of mortgagees (Art. 453); (9) of pawnees (Art. 452); (10) of depositaries (Art. 432); (11) of bailees ($ 430.")); (12) car- riers' liens (Art. 434) ; (13) liens of factors (Art. 438) ; (14) liens of acceptors (Art. 472) ; (15) liens of attorneys-at-law (see in Part III.) (so, in two others : Ind. 5276; Dak.); (16) liens on crops or farming-utensils for advances ($ 1954). (17) In many, liens on ships or boats SPECIAL LIENS. 563 for labor or material ($ 4643) ; (18) the vendor's lien {^ 1950,4573) ; so, in California and Dakota. For other states, where no special list of liens is provided, see the respective kinds of liens as above indicated. § 4628. Rank. Liens generally rank according to their priority : Ga. 1995. (For special provisions, see the various liens in detail.) No chattel mortgage takes precedence of a lien : Wy. p. 4G4, § 13. These liens are not valid against purchasers without special notice of the lien : Wy. ib. $ 16. They have precedence of attachments and incumbrances made after the lien attached : Me. 90,42; see generally iu Part IV., Div. II. § 4629. Remedy. A person having a lien is generally entitled to retain possession of the property until his lien is satisfied : Wis. 3347; Kan. 58,10; Ark." 4464; Ore. 1878, p. 102,1-2. If he give up possession to the owner, he loses the lien : Kan. ; Ga. 1988. He may, in Georgia, have execution against the property, after demand on the owner or his agent and refusal to pay, if the owner can be found : Ga. 1991. So, his remedy is by attachment and sale : Vt. 1994. In others, his remedy is by petition to court for sale : Mass. 192,24 ; Me. 91,47-8 ; Wis.; Mo. 3197 and 3199; Ark." 4486 : Dak. C. Civ. P. 674 ; Wy. »• "• <* p. 463, § 4 ; Fla. 143,11. He may sell after ten, twenty, or thirty days' notice to the owner, without order of court: 111. 141 ,3 ; Kan. 58,6 ; Ark.« 4465-7 ; Ga. 1992-3 ; N.M.«./ 1543-4 ; 1546. He may sell after notice to the owner, if the debt remain unpaid for three mouths (the value of the goods not being over $100 ; otherwise, an order of court is necessary, in Wisconsin) : Wis.''' ^ 3.347 ; Ore. 1878, p. 102, § 3. If the debt be unpaid thirty days after due, he may sell upon petition to a justice of the peace: Col. 2121. Notes. — " Applies to liens mentioned under § 4642 only. * Applies to liens for service b)' stud-horses, etc. (§ 4642). " Applies to artisans' liens only (§ 4641). '^ Applies to carriers' liens (§ 4353). « Applies to innkeepers' and stable-keepers' liens (§§ 4393,4642). / Applies to landlords' liens (§ 2034). § 4630. Limitation. A lien must, in Georgia, be enforced within one year after the debt becomes due : Ga. 1991. § 4631. Assigament. In Georgia, all liens are assignable in writing : Ga. 1996. Art. 464. Special Liens. § 4640. Laborers. (See also Railroads, Labor, etc., in Part III ) (A) Laborers have a general lien upon the property of their employers, liable to levy and sale for their labor, superior to all other liens except liens for taxes, landlords' special liens on crops, and such other liens as are declared by law superior to them : Ga. 1974. (B) They have also a special lien on the products of their labor (superior to all liens except for taxes and landlords' special liens on crops : Ga.) : Ark. 4427 ; Ga. 1975. Liens of laborers arise upon completion of their contract of labor, but do not exist against hona-fide purchasers without notice ; as between themselves, they rank according to date of tlio completion of contract: Ga. 1976. Laborers at steam-mills have all the liens in this sec- tion provided : Ga. 1984. (C) And there is a special lien in favor of laborers (1) on lime, limework, and slate : Me. 91,27. (2) Contractors, laborors (or, in a few, material-men) have a lien on logs and lumber or wood cut : N.H. 139,13 and 16 ; 1879,57,25 ; Me. 91,38 ; 1885,280 ; Vt. 1988 ; Mich. 8412 ; Wis. 3329 and 3341 ; 1885,469 ; Minn. 32,36 and 63 ; 1885,86 ; Ore. 1882, 564 TRANSFERS AND LIENS. p. 63, § 1 ; Nev. 1879,45; Wash. 1941 ; Ida. 1874-5, p. 615,11 ; Fk. 143,39 ; Ariz. 1885,93,20. (3) Miners have a lien upon all the real and personal property of mines : Mich. 8408 ; (4) brickuiulvers have a lien on the bricks : Me. 91,28. § 4641. Artisans. Any mechanic or artisan making, altering, or repairing any ai'ticle of personal property at the request of the owner or legal possessor has a lieu on such property for his reasonable charges: Mass. 192,24; N.J. 1885,15; Ind. 5304 ; Mich. 8399,8400; Wis. 3343 ; Minn. 90,16 ; Kan. 58,1 ; Va. 1880,191 ; N.C. 1783 ; Tenn. 2763 ; Ark. 4425 ; Tex. 3184-5 ; Cal. 8051, Amt. 8052 ; Ore. 1874, p. Ill, § 17 ; 1878, p. 102, § I ; Col. 2120; Dak. Civ. C. 1806,1814; Ida. 1874-5, p. 617,15; Wy. 77,l,p. 462, §3;Ga. 1981; Ala. 3462; 1885,26; Miss. 1383 ; Fla. 143,10; 188.5,3611; N.M. 1536 ; Ariz. 1885,93,19 ; D.C. 711; S. C. 1667. Such a lien is lost by the surrender of the property : Kan. 58,10 ; Tex. ; Ga. ; N.M. Enforcement. (See also § 4629.) He may hold possession of the property until paid : Mich. 8400 ; Minn. ; Kan. ; Va. ; N.C. ; Tex. ; Cal. ; Ore. ; Dak. ; Ida. ; Ga. ; Miss. ; Ariz. ; D.C. And may sell at the expiration of a certain period : Mass. ; Ind. ; Minn. ; Kan. ; N.C. ; Tenn. ; Tex. 3136 ; Cal. ; Ore. ; Dak. ; Ida. ; Fla. ; Ariz. Giving notice to the owner : Mass., Kan., Tex. And notice of the sale : Ind. 5305 ; Minn. ; N.C. ; Tenn. ; Tex. ; Cal. ; Ore. ; Dak. ; Ida. ; Fla. ; Ariz. But in others, it can only be enforced by petition or suit in court : Mass. ; Mich. 8402 ; Ark. 4426; Wy. 77,2; Ala. 3464; Miss; S. C. § 4642. Graziers' Liens. In most states, ranchmen, stable-keepers, agistors, or keepers, in a pasture or elsewhere, of horses, cattle, and other domestic animals, have a lien thereon for their charges for pasturing and board : N.H. 139,2 ; Mass. 192,32 ; Me. 91,41 ; Vt. 1884,91 ; Ct. 1875,77 ; N.Y. 1872,498 ; N.J. Inns, 72 ; 0. 3212 ; Ind. 5292 ; 111. 82,50; Mich. 8399 ; Wis. 3344 ; lo. 1880,25; Minn. 90,17; 1885,81 ; Kan. 58,2 ; Neb. 1,4,28; Ky. 1874, Feb. 7 ; Tenn. 2756,2760 ; Mo. 3196; Cal. 805), Amt.; Ore. 1878, p. 102, § 2; Nev. 144 ; Col. 2118; Dak. C. Civ. P. 672 ; Mon. G. L. 848; Wy. p. 462, § I. So, of livery-stable keepers specially: Pa. Inns, 16 ; Wis. ; lo. ; Minn, ; Del. V. 17, 620,1 ; Va. 1879,84,2; Ala. 3494; Fla. 1885,3618; N.M. 1542. So, in many, the owner of a stud-horse or jackass to which mares or jennets are turned has a lien for his charges on the colts or issue : 0. 1884, p. 43 ; Neb. 1883,2,1 ; KC. 1797; Ky. 1876, Feb. 11 ; Tenn. 2757-8; Ark. 4468; Dak. Civ. C. 1814^-; Ga. 1883, p. 131 ; Ala. 3496 ; Miss. 1394; S. C. 2349. So, in some, of bulls : Neb. ; N.C. 1885,72 ; Dak. ; Ga. ; Ala. 1883,85 ; Miss; S. C. Stable-Keepers and any persons have a lien upon horses, carriages, and harnesses kept bv them for their proper charges : N.H. ; Mass. ; N.J. ; 111. 82,49 ; Wis. 3344 ; Del. ; Va. ; Ky. 1871, Jan. 31 ; Ark. 4463 ; Tex. 3183 ; Cal. 8051, Amt. ; Ore. ; Nev. ; Col. ; Dak. ; Mon. ; Wy. ; Ga. 1986; N.M. A livery-stable keeper is a depositary for hire, liable like an innkeeper : Ga. 2124. § 4643. Liens on Ships. In most states, any person (a) doing labor or fur- nishing materials, whether by express or implied contract, for the construction or repair of any sea, river, or canal ship, boat, or vessel, has a lien upon such ship, tackle, and furniture : N.H. 139,9 ; Mass. 192,14 ; Me. 91,8 ; Vt. 1981 ; Ct. 18,7,18 ; N.Y. 1862,482,1 ; N.J. Liens, 1 ; 1884,169 ; Pa." Attachment of Vessels, 1 and 3-6; O. 5880; Tnd. 5277-8; HI. 12,1 ; Mich. 8236 ; Wis.* 3348 ; To. 3432 ; Minn. 83,1 ; Md. 67,6,44 ; Del. V. 16,145,5 ; Va.'^ 148,5 ; 1877,44 ; N.C. 1781 ; Ky. 1880, May 5, § 1 ; Tenn. 2751 ; Mo. 4225 ; Ark. 395 ; Tex. 3180 ; SPECIAL LIENS. 565 Cal. 10813 ; Ore. 1876, p. 9, § 17 ; Wash. 1939 ; Mon.'' C. Civ. P. 204-5 ; S.C. 238y; Ala. 3465; Miss. 1395; Fla. 143,18; Ariz. 2755. So, ill many, any person so furnishing (b) stores, supplies, or ship-chandlers' goods : Mass. ; N.Y. ; N.J. ; Pa. ih. 3 ; 0. ; Ind. ; 111. ; Mich. ; Wis. ; * lo. ; Minn. ; Md. ; Del. ; Va. ; Ky. ; Tenn. ; Mo. ; Cal. ; Ore. ; Wash. ; Mon. ; S.C. ; Ala. ; Miss. ; Pla. ; Ariz. (C) So, for wharfage or dock charges : N.Y. ; N.J, ; 0. ; 111. ; Mich. ; Wis. ;* Minn. ; Va. ; Tenn. 2753; Mo.; Cal; Ore.; Wash.; Ariz.; or anchorage : 111., Mich., Wis.,*" Minn., Mo., Cal., Ore., Wash., Ariz. ; owners of dry docks or marine railways : Me., 111., Mich. (D) In others, for pilotage : N.Y., Va. (E) So, a ship or person has a lien on another vessel doing damage (1) by collision : N.Y. 1862,482,3.3 ; N.J. Liens, 40 ; Ala. 3327. So, (2) for all damages for injuries done to person or property by the vessel, whether the person or property is aboard the vessel or not, when the same occurred through negligence or misconduct of the owner, agent, or employee ; 0. ; Ind. ; 111. ; Mich. ; Wis. ; lo. ; Minn. ; Va. ; Ky. ih. 2 ; Mo. ; Cal. ; Ore. ; Wash. ; Mon. ; Ai-iz. Except an injury received by one member of the crew from another : 111. So, (3) for " any torts of the vessel : " Ark. 396. (F) For towage : N.Y., N.J., 111., Mich., Wis.,*" Ore. (G) For labor on the vessel when sunk or disabled : 111., IVFich. (H) For debts due the ship's husband or agent by the owner for disbursements on account of the vessel : 111. (I) For damages on any contract of freight or transportation of passengers made by the owner or agent in the State : 0,, Ind., 111., Mich., Wis., lo., Minn., Va., Mo., Cal., Ore., Wash., Mon., Ariz. (J) In many, seamen, masters, or other employees employed on the ship have the lien for wages due them : Ind. ; 111. ; Mich. ; Minn. ; Ky. ; Tenn. ; Mo.-^ 4267 ; Ark." 398 ; Cal.'*'" 8056 ; Ore. ; Wash. ; Dak.''- ' Civ. C. 1810 ; Mon. ;'^ Ga. 1982 ; Ala. ; Miss. ; Ariz. But in Wisconsin, it is specially provided that " no person employed as master, or otherwise, on board the vessel, to collect or receive freights or passage- money " has the lien. The master of a ship has a general lien, independent of possession, upon the ship and fi'eightage, for advances necessarily made or liabilities necessarily incurred by him for the benefit of tlie ship, but has no lien for his wages : Cal. 8055 ; Dak. Civ. C 1809. (K) There is a lien on account of any indebtedness for insurance, fire or marine, effected upon such ship or tackle : N.Y., 0., Mich., Wis.^ (L) In others, on account of indebtedness on bottomry : Mich. ; for salvage : Mich., Va. ; lighterage : Mich. There are, in several states, special provisions for the lien on inland river craft. It takes preference of any other debt due from the owners of the ship : Pa. All such liens are deemed simultaneous, and paid pro rata: Me. 91,22. This lien takes precedence of all other liens upon the vessel except (1) mariners' wages : N.H. 139,10; Mass.; Me.; Ct. ; N.Y. ; N.J. ; Ind. 5279 ; 11112,26; Ky. ; Ark.; Mon.;" S.C; Ariz. ; (2) mortgages or bills of sale duly executed and recorded before the lien accrued : Md. 67,48. The order of liens is as follows : (1) salvage ; (2) seamen's wages ; (3) all other liens duly filed : Mich. 8267 ; (1) seamen's wages; (2) liens for labor in repairing the vessel, or ma- terials or supplies furnished ; (3) wharfage or anchorage ; (4) for non-performance of freight or transportation contracts; (5) damages for injuries : Mo. 4226. So, in Oregon, but the last two classes rank together. The classes V), (B). (A), (C), (I), (E), rank in order : Cal., Wash. (1) Mariners' wages ; (2) such liens as result from contracts made within the territory; (3) all other cases: Mou. C. Civ. P. 206. 566 TRANSFERS AND LIENS. In a few, this lien on ships is governed by the same law as mechanics' liens on houses : Del. ; N.C. ; Fla. 143,7. Notes, — " Only carpenters, blacksmiths, mast-makers, vendors of copper sheathing, iron manu- facturers, steam-engine and boiler makers, boat-builders, block-makers, rope-makers, sail-makers, riggers, joiners, carvers, plumbers, painters, ship-chandlers, coppersmiths, brass-founders, coopers, vendors of sail-cloth, and lumber-merchants, have the lien. * For these debts the owners of the ves- sel are personally liable, besides any liability that may exist against the master or agent : Wis. 3350. ° In states so noted, the process is termed attachment, not a lien ; but the effect is the same. <* This lien attaches also to the freiglitage. « It is superior to all other liens. ■/' But not for more than two mouths' wages. § 4644. Louisiana Law of the Privilege on Ships and Merchandise. The follow- ing debts are privileged on the price of ships and other vessels, in the order in which they are placed: (I) Legal and other charges incurred to obtain the sale of a ship or other vessel, and the distribution of the price. (2) Debts for pilotage, towage, wharfage, and anchorage. (3) The expenses of keeping the vessel from the time of her entrance into port until sale, includ- ing the wages of persons employed to watch her. (4) Tlie rent of stores in which the rigging and apparel are deposited. (.5) The maintenance of the ship and her tackle and apparatus, since her return into port from her last voyage. (6) The wages of the captain and crew employed on the last voyage. (7) Sums lent to the captain for the necessities of the ship during the last voyage, and reimbursement of the price of merchandise sold by him for the same purpose. (8) Sums due to sellers, to those who have furnished materials, and to work- men employed in the construction, if the vessel has never made a voyage ; and those due to creditors for supplies, labor, repairing, victualsi, armament, and equipment, previous to the departure of the shi}}, if she has already made a voyage. (9) Money lent on bottomry for refitting, victualing, arming, and equipping the vessel before her departure. (10) The pre- miums due for insurance made on the vessel, tackle, and apparel, and on the armament and equipment of the ship. (11) The amount of damage due to freighters for the failure in deliv- ering goods which tliey have shipped, or for the reimbursement of damage sustained by the goods through the fault of the captain or crew. (12) Where any loss or damage has been caused to the person or property of any individual by any carelessness, neglect, or want of skill in the direction or management of any steamboat, barge, flatboat, water craft, or raft, the party injured shall have a privilege to rank after the privileges above specified. The term of pre- scription of privileges against ships, steamboats, arxd other vessels shall be six months : La. 3237. The creditors, named in each number of the preceding paragraph, except number twelve, come in together, and must all sufi"er a ratable diminution, if the fund be insufficient. Creditors having privileges on ships or other vessels may pursue the vessel in the posses- sion of any person who has obtained it by virtue of a sale ; in this case, however, a distinction must be made between a forced and a voluntary sale. When the sale was a forced one, the right of the purchaser to the property becomes irrevo- cable ; he owes only the price of adjudication, and over it the creditors exercise their privilege, in the order above prescribed. When the sale is voluntary on the part of the owner, a distinction is to be made, whether the vessel was in port or on a voyage. When a sale has been made, the vessel being in port, the creditors of the vendor, who enjoy the privilege for some cause anterior to the act of sale, may demand payment and enforce their rights over the ship, until a voyage has been made in the name and at the risk of the pur- chaser, without any claim interposed by them. But when the ship has made a voyage in the name and at the risk of the purchaser, with- out any claim on the part of the privileged creditors of the vendor, these privileges are lost and extinct against the ship, if she was in port at the time oi sale. On the other hand, if the ship was on a voyage at the time of sale, the privilege of the creditor against the purchaser shall only become extinct after the ship sliall have returned to the port of departure, and the creditors of the vendor shall have allowed her to depart on another voyage for the account and risk of the purchaser, and shall have made no claim. A ship is considered to have made a voyage when her departure from one port and arrival at another shall have taken place, or when, without having arrived at another, more than sixty days have elapsed between the departure and return to the same port ; or when the ship, hav- SPECIAL LIENS. 567 ing departed on a long voyage, has been out more than sixty days without any claim on the part of persons pretending a privilege. The captain has a privilege for the freight during fifteen days after the delivery of the mer- chandise, if it has not passed into third hands. He may even keep the goods, unless the shipper or consignee shall give him security fur the payment of the freight. Every consignee or commission agent who has made advances on goods consigned to him, or placed in his hands to be sold fur account of the consignor, has a privilege for the amount of these advances, or for any balance due him (La. D. 2887) with interest and charges on tho value of the goods, if they are at his disposal in his stores, or in a public warehouse, or if before their arrival, he can show, by a bill of lading or letter of advice, that they have been despatched to him. This privilege extends to the unpaid price of the goods which the c(nisignee or agent shall have thus received and sold. It is preferred to any attacliment made after the goods or invoice, etc., are received (La. D. 2887). Every consignee, commission agent, or factor shall have a privilege, preferred to any attach- ing creditor, on the goods consigned to him for any balance due him, whether specially advanced on such goods or not; provided they have been received by him, or an invoice or bill of lading has been received by liim previous to the attachment ; provided, that the privilege established by this paragraph shall not have a preference over a privilege pre-existing on the goods afore- said in behalf of a resident creditor of this State. In the event of the failure of the consignee or commission agent, the consignor has not only a right to reclaim the goods sent by him, and which remain unsold in the hands of the con- signee or agent, if he can prove their identity, but he has also a privilege on the price of such as have been sold, if the price has not been paid by the purchaser, or passed into account cur- rent between him and the bankrupt : La. 3238-3248. §4645. Duration. This lien (if duly enforced, as below) continues (1) until satisfied: Mass. 192,14; (2) only until the departure of the vessel : Pa. ib. 2; (3) it continues twelve months: N.Y. 1862,482,2; 1885,273; (4) eight months: Vt. 1981; (5) six months: Ala. 3466; Miss. 1396; (6) three months: Wis. 3351; Tenn. ; S.C. 2390; 1884,451; (7) thirty days: Fla. 143,18; (8) nine months: N.J. Liens, 1; I1L« 12,3; Mo.^ 4268; (9) for two years after filing statement as below: Md. 67,6,47; (10) five years: 111. ; or (11) until thirty days after the vessel's return, if it be absent at the end of the time so above limited : N.Y. But generally it will dissolve unless a sworn statement be filed with the court, county, city, or town clerk, or (in New Hampshire and Maine) an attachment be brought within (1) four days after launching : N.H. 139,9 ; Me. ; Del. ; or after the .'chip's departure : Mass. 192,15 ; (2) four days after completion of vessel : N.H. ; (3) twelve days after departure of the ship : N.Y. ; (4) six months after commencement of work : Md. 67,6,45 ; (5) ten days after end of work : Ct. ib. 19; (6) one year after the claim accrues: Minn. 83,23; Ky. ib. 8; CaL 10813; Ore. 32,33 ; Mon. C. Civ. P. 207. The lien for collision (§ 4643, D) mu«t be enforced by action within ten days thereafter: N.Y. ; twenty days : N.J. Liens on vessels on the great lakes cease at the expiration of six months after the January 1st following, or ten days after the vessel's return to the pcn-t where the lien was contracted : N.Y. 1863,422 ; 1885,216. The receiving the note of the owner or master of the vessel for the claim does not forfeit the lien, unless expressly received in payment therefor and so specified therein : Wis. 3349. Notes. — "As against other creditors or subsequent incumbrancers ; but it may be enforced against the vessel any time within five years. * But liens for wages must be enforced within thirty days after due. § 4646. Enforcement. (A) This lien on ships is enforced by petition in court : Mass. 192,17; Ct. ; lo. 3433; Ore. 32,19-20. (B) By attachment : N.H. 139,10 ; Me. 91,8 ; Vt. 1981 ; N.Y. ib. 6 ; N.J. Liens, 4 ; Pa. ib. 11 ; 0. 5884 ; Ind. 5280 ; 111. 12,6 ; Mich. 8238 ; Wis. 3351,3354 ; Minn. 83,4 ; Del. V. 16,145,5 ; Va. 148,5 ; Ky. ib. 4 ; Tenn. 4297 ; Mo. 4227,4234 ; Ark. 399 ; Cal. 10817; Uta. C. Civ. P. 210; S.C. 2392; Ala. 3329; Miss. 2415; Fla. 143,19; Ariz. 2759. (C) By scire facias : Md. 67,6.49. (D) By admiralty suit in rem: Wash. 1940. 5G8 TRANSFERS AND LIENS. § 4647. Release of Lien. The owuer or his agent may generally release the vessel trom the lieu by giving bond conditioned to pay all the judgments ren- dered on claims so filed or enforced : N. Y. ib. 11 ; N.J. ih. 12 ; Pa. ih. 14 ; 0. 5887 ; Ind. 5283 ; 111. 12,15 ; Mich. 8248 ; Wis. 3356 ; lo. 3438 ; Minn. 83,7 ; Del. V. 16,145,5; Ya. 148,9; Ky. ih. 6; Tenn. 4298 ; Mo. 4238; CaL 10822; Ore. 32,25 ; Uta. C. Civ. P. 215 ; Ala. 3331 ; Ariz. 2761. § 4648. Sale. If the vessel is not released from the lien under § 4492, upon judgment for the claimant the court issues au order of sale of the vessel, etc. : Mass. 192°18; Me. 91,20; N.Y. ih. 15; N.J. ih. 21; Pa. ib. 19; 0. 5890; 111. 12,22; Mich. 8263 ; Wis. 3353,4242 ; Minn. 83,8 ; Del. V. 16,145,7 ; Va. 148,23 ; Tenn. 4303; Mo. 4253; Cal. 10824; Ore. 32,27; Uta. C. Civ. P. 216-7; S.C. 2396; Ala. 3338; Ariz. 2766. And the proceeds, after paying costs, are distributed among the claimants, giving priority as specified in § 4488: Mass. 192,21 ; Me. 91,21 ; N.J. ib.2i; Pa. ; 111. 12,26 ; Mich. 8269; Md. 67,53; Del.; Tenn.; Mo. 4247; Cal.; Ore. 32,31; S.C; Ariz. If the proceeds of the sale (§ 4493) are insufficient to satisfy all the liens (1) those having liens for labor receive a percentage one third greater than those having liens for materials, stores, etc. : Mass. 192,21 ; S.C. 2396. (2) The sub-contractors are paid in full, before the original contractor: Ct. 18,7,21. (3) Except as to mariners' wages, the liens are satisfied according to their priority : N.Y. ih. 19. (4) Except as above, the distribution is joro rata: N.J. ih. 36; Pa. ib. 19; Tenn. 4305. § 4649. Further Liability. The owners are generally liable for the balance in a civil action, if the proceeds do not satisfy the debt : 0. 5891 ; Wis. 3350. So, prob- ably, in other states. § 4650. Lien on Freight. A similar lien is, in Illinois, provided in favor of such vessel upon goods shipped in it, for freight, demurrage, and advanced charges ; and it is enforced in the same way : 111. 12,2. § 4651, Producers' Liens. Farmers, etc., furnishing grain or frnit for canning or preserving have a lieu on such preserved article until it is shipped: Me. 91,40. In many states, cotton raisers, planters, farmers, etc., have liens on their produce in the hands of the aaent or factor. Art. 466. Civil Law of Privileges. § 4660. General Provisions. Wlioever has bound himself personally is obliged to fulfil his onerairoincnts out of all his property, movable and immovable, present and future. The property of the debtor is the common pledge of his creditors, and the proceeds of its sale must be distributed among them ratably, unless there exist among the creditors some lawful causes of preference. Lawful causes of preference are privilege and mortgages. Privilege can be claimed only fur those debts to which it is expressly granted in the code : La. 3182-5. § 4661. Of the Several Kinds of Privileges. Privilege is a right which the nature of a debt gives to a credit(jr, and which entitles him to be preferred before other creditors, even those who have mortgages. Among creditors who are privileged the preference is settled by the different nature of their privileges. The creditors who are in the same rank of privileges are paid in concurrence, that is, on an equal footing. Privileges may exist either on movables or immovables, or on both at once : La. 3186-9. CIVIL LAW OF PRIVILEGES. 569 § 4662. Of Privileges on Movables. Privileges are either general or special on certain movables : La. 31i)0. § 4663. Of General Privileges on Movables. The debts which are privileged on all the movables in general are those hereafter enumerated, and are paid in the following order : ~ 1. Funeral charges. 2. Law charges. 3. Charges of whatever nature occasioned by the last sickness, concurrently among those to whom they are due. 4. The wages of servants for the year past, and so much as is due for the current year. 5. Supplies of provisions made to the debtor or his family during the last six mouths, by retail dealers, such as bakers, butchers, grocers ; and during the last year by keepers of boarding- houses aud taverns. 6. The salaries of clerks, secretaries, and other persons of that kind. 7. Dotal rights due to wives by their husbands : La. 3191. § 4664. Servants or domestics are those who receive wages, and stay in the house of the person paying and employing them for his service or that of his family ; such are valets, foot- men, cooks, butlers, and others who reside in the house. Domestics or servants must make a demand of their wages within a year from the time when they left service ; but their privilege is only for the year past, and so much as is due for the present year. As to the wages of preceding years which may be due, the wages may be recovered, if there is any balanced account, note, or obligation of the debtor ; but they enjoy no privilege. They form an ordinary debt, for which domestics or servants come in by contribution with other ordinary creditors : La. 3205-7. § 4665. Of Supplies of Provisions. Such supplies of provisions as confer a privilege are those which are made by retail dealers, — that is, persons keeping an open shop, and selling by small portions provisions and liquors. Retail dealers who have furnished such supplies ought to demand their money within a year from the time of the first supply ; but they have a privilege ouly for the last six months, and for the rest they are placed on the footing of ordinary creditors. Dealers by wholesale in provisions and liquors do not enjoy any privilege on the property of their debtor further than what they have acquired by mortgage or by a judgment duly recorded. It is not keepers of taverns and hotels alone who are comprehended in the term masters of boarding-houses, and who enjoy a privilege for their supplies, but all persons who make a busi- ness of receiving persons at board for a fixed price. Teachers and ]ireceptors who receive into their houses young persons to be brought up, led, and instructed, enjoy the same privilege which is given to keepers of boarding-houses. The privilege of keepers of boarding-houses, taverns, and other persons comprised in this class extends to the last year due, aud so much as has expired of the current year : La. 3208- 3213. § 4656. Of the Privilege of Clerks and that of "Wives for their Dower. Although clerks, secretaries, aud other agents of that sort cannot be included under the denomination of servants, yet a privilege is granted them for their salaries for the last year elapsed, and so much as has elapsed of the current year. This privilege, however, cannot be enforced until after that of the furnishers of provisions : La. 3214. The privilege granted to wives on the movable efi'ects of their husbands exists for the dotal property only, and can only be enforced on such efi'ects as were in the husband's possession at the dissolution of the marriage or co-partnership : La. 3215. § 4667. Of the Privileges on Particular Movables. The privileges enumerated in the preceding section extend to all the movables of the debtor, without distinction. There are some which act only on particular movables and no other ; and it is of these last that we shall treat in this and the follovAnna: secticms. The debts which are privileged on certain movables are the following : — 570 TRANSFERS AND LIENS. 1. The appointments or salaries of the overseer for the cun-ent year on the crops of the year and the proceeds thereof; debts due for necessary supplies furnished to any farm or pLmtation, not including articles furnished and which wore sold to laborers, and debts due for money actually advanced and used for the purchase of necessary supplies and the payment of necessary expenses for any form or plantation, on the crops of the year and the proceeds thereof. 2. The debt of a workman or artisan for the price of his labor on the movable which he has repaired or made, if the thing continues still in his possession, or that of the person for whom they were repaired. 3. The rents of immovables and the wages of laborers employed in working the same on the crops of the year and on the furniture which is found in the house let or on the farm, and on everything which serves to the working of the farm. 4. The debt on the pledge which is in the creditor's possession. 5. That of a depositor on the price of the sale of the thing by him deposited. 6. The debt due for money laid out in preserving the thing. 7. The price due on movable effects, if they are yet in the possession of the purchaser. 8. The things which have been furnished by an innkeeper on the property of the traveller which has been carried to his inn. 9. The carrier's charges and the accessory expenses on the thing carried, including necessary charges and expenses paid by carriers, — such as taxes, storage, and privileged claims required to be paid before moving the thing ; and in case the thing carried be lost or destroyed without the fault of the carrier, this privilege for money paid by the carrier shall attach to insurance effected on the thing for the benefit of the owner, provided written notice of the amount so paid by the carrier and for whose account, with a description of the property lost or destroyed, be given to the insurer or his agent within tiiirty days after the loss, or if it be impracticable to give the notice in that time, it shall be sufficient to give the notice at any time before the money is paid over. The privilege hereinbefore granted to the overseer, the laborers, the furnishers of supplies, and the party advancing money necessary to carry on any farm or plantation, shall be concur- rent, and shall not be devested by any prior mortgage, whether conventional, legal, or judicial, or by any seizure and sale of the land while the crop is on it. The privileges granted by this paragraph, on the growing crop in favor of the classes of persons mentioned shall be concurrent, except the privilege in favor of the laborer, which shall be ranked as the first privilege on the crop : La. 3218 ; D. 2873-5. Art. 467. Bottomry and Respondentia. § 4670. Bottomry, what. Bottomry is a contract by which a ship or its freightage is hypothecated as security for a loan, which is to be repaid only in case the ship survives a par- ticular risk, voyage, or period. The owner of a ship may hypothecate it or its freightage upon bottomry for any lawful pur- pose and at any time and place. The master of a ship may hypothecate it upon bottomry only for the purpose of procuring repairs or supplies which are necessary for accomplishing the objects of the voyage or for securing the safety of the ship. The master of a sliip can hypothecate it upon bottomry only when he cannot otherwise re- lieve the necessities of the ship and is unable to reach adequate funds of the owner, or to obtain any upon the personal credit of the owner, and when previous communication with him is pre- cluded by the urgent necessity of the case. The master of a ship may hypothecate freightage upon bottomry under the same circum- stances as those whicli authorize an hypothecation of the ship by him. Up(m a contract of bottomry the parties may lawfully stipulate for a rate of interest higher than that allowed by the law upon other contracts. But a competent court may reduce the rate sti{)iilated when it appears unjustifiable and exorbitant. A lender tipon a contract of bottomry made by the master of a ship, as such, may enforce the contract, though the circumstances necessary to authorize the master to hypothecate the ship did not in fact exist, if, after due diligence and inquiry, the lender had reasonable grounds to believe, and did in good faith believe, in the existence of such circumstances. A stipulation in a contract of bottomry imposing any liability for the loan independent of the maritime risks is void. GENERAL PRINCIPLES. 571 In case of a total loss of the thing hypothecated, from a risk to which the loan was sub- ject, the lender upon bottomry can recover nothing ; in case of a partial loss, he can recover only to the extent of the net value to the owner of the part saved. Unless it is otherwise expressly agreed, a bottomry loan becomes due immediately upon the termination of the risk, although a term of credit is specified in the contract. A bottomry lien is independent of possession, and is lost by omission to enforce it within a reasonable time. A bottomry lien, if made out of a real or apparent necessity, in good faith, is preferred to every other lien or claim upon the same thing, excepting only a lien for seamen's wages, a subsequent lien of material-men for supplies or repairs indispensable to the safety of the ship, and a subsequent lien for salvage. Of two or more bottomry liens on the same subject the latter in date has preference, if created out of necessity: Cal. 8017-8029; Dak. Civ. C 1783-1795. § 4671. Respondentia. Respondentia is a contract by which a cargo, or some part thereof, is hypothecated as security for a loan, the repayment of which is dependent on mari- time risks. The owner of cargo may hypothecate it upon responaentia, at any time and place, and for any lawful purpose. The master of a ship may hypothecate its cargo upon respondentia only in a case in which he would be authorised to hypothecate the ship and freightage, but is unable to borrow suffi- cient money thereon for repairs or supplies which are necessary for the successful accomplish- ment of the voyage ; and he cannot do so, even in such case, if there is no reasonable prospect of benefiting the cargo thereby. The provisions of § 4640 apply equally to loans on respondentia. The owner of a ship is bound to repay tc the owner of its cargo all which the latter is com- pelled to pay, under a contract of respondentia made by the master, in order to discharge its Uen : Cal. 8036-8040 ; Dak. Civ. C. 1796-1800. CHAPTER V. — NEGOTIABLE PAPER. Art. 470. General Principles. § 4700. Definitions : A Bill of Exchange, by the code of Georgia, is an order by one person, called the drawer or maker, to another, called the drawee or acceptor, to pay money to another (who may be the drawer himself) , called the payee, or his order, or to the bearer ; if the payee or a bearer transfers the bill by indorsement, he then becomes the iudorser. If the drawer or drawee resides out of the State, it is called a foreign bill of exchange : Ga. 2773. The term includes all drafts and orders drawn by one person on another for the payment of a sum of money specified therein : Ark. 471. One who writes his name upon a negotiable instrument, otherwise than as a maker or acceptor, and delivers it, with his name thereon, to another person, is called an indorser, and his act is called indorsement : Cal. 8108; Dak. Civ. C. 1836 ; Uta. 1882, 41,16. A bill of exchange is an instrument negotiable in form, by which one who is called the drawer requests another, called the drawee, to pay a specified sum of money : Cal. 8171 ; Dak. Civ. C. 1882 ; Uta. 1882,41,59. Every instrument which is made payable at a day subsequent to its date, and is otherwise in the form of a check, shall be deemed a bill of exchange : W. Va. 1882,77. A bill of exchange may give the name of any person in addition to the drawee, to be resorted to in case of need. A bill of exchange may be drawn in any number of parts, each part stating the existence of the others, and all forming one set. An agreement to draw a bill of exchange binds the drawer to execute it in three parts, if the other party to the agreement desires it. 572 NEGOTIABLE PAPER. Presentment, acceptance, or payment of a single part in a set of a bill of exchange is sufficient for the whole •. Cal. 8172-5; Dak. Civ. C. 1883-6; Uta. ih. 60-63. A bill or check may be made payable in bank-notes, or currency, or other funds, and be negotiable as if drawn for money : Ky. 22,13. All bills drawn and payable within the State are inland bills ; those drawn in the State and payable elsewhere, are foreign bills: Cal. 8224; Dak. Civ. C. 1914; Ala. 2118. Checks. A check is a bill of exchauge drawn upon a bank or banker, or a person described as such upon the face thereof, and payable on demand, without interest. A check is subject to all the provisions of this code concerning biUs of exchange, except that, — 1. The drawer and indorsers are exonerated by delay in presentment only to the extent of the injury which they suffer thereby ; 2. An indorsee of a bond, bank-note, check, or certificate of deposit, after its apparent ma- turity, but without actual notice of its dishonor, acquires a title equal to that of an indorsee before such period : Cal. 8254-5 ; Dak. Civ. C. 193-4 ; Uta. 1882,141,110-2. A bank-note remains negotiable, even after it has been paid by the maker : Cal. 8261 ; Dak. Civ. C. 1935 ; Uta. A Promissory Note is a written promise made by one or more to pay another or order or bearer, at a specified time, a specific amount of money or otlier articles of value : Ga. 2774. A promissory note is an instrument, negotiable in form, whereby the signer promises to pay a specified sum of money. An iustrument in the form of a bill of exchange, but drawn upon and accepted by the drawer himself, is to be deemed a promissory note. A bill of exchange, if accepted with the consent of the owner by a person other than the drawee or an acceptor for honor, becomes in effect the promissory note of such person, and aU prior parties thereto are exonerated. The general law of negotiable paper and §§ 4716 and 4713 of this book apply to promissory notes : Cal. 8244-7 ; Dak. Civ. C. 1928-1931 ; Uta. ib. 106-9. If a note be made by more than one, it may be a joint promise or joint and several ; in which case each is bound for the whole separately, at the option of the holder : Ga. 2774. The sum of money must not be expressed in figures only, or other evidence must be given to prove the amount : La. D. 319 ; Civ. C. 2243. If the payment is in articles other than money, and is not punctually made, the holder may recover the value of such articles at the time the note was due, at the place where it was pay- able, if a specific place is mentioned ; otherwise, at the place where it was made, with lawful interest thereon : Ga. Every promise in writing whereby any person or corporation promises or agrees to pay a sum of money, or acknowledges the same to be due, shall be deemed a promissory note ; and the sum due to the payee and his assigns : Miss. 1123. When any person or corporation shall, by order in writing duly signed, direct the payment of a sum of money by any other person, the sum therein specified shall be due by virtue thereof to the person in whose favor it is drawn, and may be put in suit against the drawer thereof or against the drawee, if accepted, and the amount recovered, with interest and costs : Miss. 1126. A negotiable iustrument is a written promise or request for the payment of a certain sum of money to order or bearer, in conformity to the provisions of this article. A negotiable instrument must be made payable in money only, and without any condition not certain of fulfilment. The person to whose order a negotiable iustrument is made payable must be ascertainable at the time the instrument is made. A negotiable instrument may give to the payee an option between the payment of the sum specified therein and the performance of another act ; but as to the latter, the instrument is not within the provisions of this title. A negotiable instrument may be with or without date, and with or without designation of the time or place of payment. A negotiable iustrument may contain a pledge of collateral security with authority to dispose thereof. A negotiable instrument must not contain any other contract than such as is specified in this article. GENERAL TRINCIPLES. 573 Any date may be inserted by tlie maker of a negotiable instrument, whether past, present, or future, and the instrument is not invalidated by his death or incapacity at the time of the nominal date. There are six classes of negotiable instruments, namely : — 1. Bills of exchange. 2. Promissory notes. 3. Bank notes. 4. Checks. 5. Bonds. 6. Certificates of deposit: Cal. 8087-8095; Dak. Civ. C. 1821-9; Uta. 1882,41, Art. I. § 4701. Negotiability of Notes. There is much confusion in the several states in the use of tlie word negotiable. Its proper technical meaning is assign- able so as to iKiss a title free of the equities existing between previous parties ; but in the statutes of many states it would seem to mean assignable so as to give the assignee a right of action in his oivn name, as in § 4032. In most states, the substance of the Eng. Stat. 3 and 4 Anne, Chap. 9, § 1, is, in effect, re-enacted, whereby all notes in writing, made and signed by any person or corporation or his agent duly authorized, by which such person, etc., promises to pay any other per- son or corporation, his or their order or bearer, any sum of money " mentioned therein, shall be taken to be due and payable accordingly, and shall be indorsable over, in the same manner as inland bills of exchange, according to the custom of merchants : E.I. 142,6 ; Ct. 18,1,1 ; N.Y. 2,4,2,1-3 ; N.J. Promissory Notes, 1 ; Pa. Bills, 1 ; Promissory Notes, 2 ; O. 3171 ; Ind." 5501 (but see below) ; 111." 98,3-4; Mich. 1577-8 ; Wis. 1675,1677 ; lo. 2082 ; Kan. 14,1 ; Neb. 1,41,1 ; N.C. 41 ; Tenn. 2713; Mo.* 547; Cal. 8101,8124 ; Ore. 48,1-2 ; Nev. 9-11 ; Col. 103 ; Wash. 2295-7 ; Dak. Civ. C. 1832,1853 ; Ida. 1874-5, p. 652,1-3 ; Mon. G. L. 99 ; Uta. ib. 12 and 31 ; S.C. 1290; Miss.« 1124; N.M. 1725; Ariz. 3464-6; 1919. So, in many, of all foreign bills of exchange : Kan. ; Neb. ; Va. ; W.Va. ; Ky. 22,10, etc, ; Men.; Ala. So, iu several, all bills, drafts, or orders: Pa.; N.C; Tenn. 2714,2716 ; Ala. 2095. So, iu one, all certificates of deposit : Wis. So, in a few, all checks on a bank : Va. 1879, Ex. 117 ; W.Va. 12,7 ; 1882,77 ; Ky. ; Ala. 2094. On a savings bank or broker : Va., W.Va., Ala., N.M. So, in many, all bonds : 111., Kan., Neb., Tenn., Col. So, in a few, due-bills : 111., Tenn., Col., N.M. So, in several, of notes payable at a bank (or any place certain : Ala.) ; and such notes, only, are indorsable over according to the ordinary law of bills and notes ; see note'', and in § 4702 : Ind. 5506; Va. ; W.Va. ; Ky. 22,21 ; Ala. Warehouse receipts are made negotiable in all respects like promissory notes under this article : Wis. 1676; and see § 4372. All notes, bills, bonds, whether drawn for value received or payable to order or not, sealed or unsealed, are negotiable like promissory notes: Tenn. 2714. See also § 4031. So, of all other writings for the payment of money or other thing (see § 4031) : Miss. ; and, in Illinois, of all other instruments in writing. In South Carolina, a negotiable note or bill for less than $1 is void, and not to be passed or received under penalty : S.C. 1301. See, for other states, in Part III., Banking. Notes. — "In several, a note may be for the payment of articles other than money : Ind., 111., Col., Ida., Ga., Miss., N.M. See § 4700. ^ So, only when the note is expressed to be for value received. ' Qucere, however, whether the courts would enforce this extraordinary law literally. § 4702. Action by Indorsee. (For citations, see also § 4701.) And the payee or indorsee, or the holder without indorsement, of a note payable to bearer, may maintain a suit on the same in his own name, in the same manner as on such inland bills against the maker or indorser (Eng. Stat. 3 and 4 Anne, C. 9, § 1) : 574 NEGOTIABLE PAPER. Vt. 2002-3 ; K.I. 142,7 ; KY. ih. 4 ; N. J. ; Pa. ; 0. 3172 ; Ind."-* 5502 ; 111."-* 98,5 and 8; Mich. 1579; Wis. 1678; lo. 2083; Neb. 1,41,2; N.C. ; Tenn. 2715; Mo. 548 ; Tex. 265 ; Ore. 48,3 ; Nev. 12 ; Col. 104-5; Wash. 2298 ; Ida. ih. 4; S.C. ; Ga. 2775 ; Miss. ; * N.M. ; Ariz. 3467. But iu two states, there is a provision expressly to the contrary, making notes (i. e., not bills of exchange) liable to defences existing against the assignor before notice of assignment to the maker, as iu the case of ordinary choses in action : Ind. 5503, 5505; Miss. 1124; see note *^, § 4701. Except notes payable at a hank : Ind. 5506. The same law perhaps exists in states where only notes, etc., payable at a bank are declared negotiable; see under §4701, above. Notes. — « Applies also to instruments not bills or notes. * But see below in this article. § 4703. Limitations. No order drawn upon or accepted by the treasurer of any county, city, town, or other municipality, whether drawn by any officer thereof or any other person, and no obligation or instrument made by any such corporation or officer thereof, unless expressly authorized by law to be made negotiable, shall be so deemed, in whatever form it be made or drawn : Wis. 1675. No bond, note, or bill, drawn payable to any person or persons alone, and not to any order, bearer, or assigns, is made negotiable by this article : Kan. 14,1 ; Neb. 1,41,1. A maker may restrain the negotiability of a note by expressing such intention in the body of the instrument: Ga. 2775. § 4704. Lost Bills. If a bill is lost before maturity, the drawer must give another bill of the same tenor to the person entitled, who must give sufficient security for indemnity, if demanded, to the drawer: N.J. ib. 6 ; Miss. 1130. See, for other states, in Part IV. for suits on lost bills. § 4705. Notes Payable to the Order of the Maker, if negotiated by him, have, iu many states, the same effect, and are of the same validity against the maker and all persons having knowledge of the facts, as if drawn to bearer : N.Y. 2,4,2,5 ; Mich. 1580 ; Wis. 1679 ; Minn. 23,16 ; Ky. 22,13 ; Mo.« 549 ; Cal 8102 ; Ore. 48,4; Nev. 13; Wash. 2299; Dak. Civ. C. 1833; Ida. ih. 5; Uta. ih. 13; Ariz. 3468. So, in most of these, of notes made payable to a fictitious person : N.Y., Mich., Wis., Minn., Mo., Cal., Ore., Nev., Wash., Dak., Ida., Ariz. If payable to the order of a person obviously fictitious, it is deemed in fact payable to bearer: Cab 8103; Dak. Civ. C. 1834; Uta.\'6. 14. All bonds, bills, or notes payable to bearer or a fictitious person are construed as payable to the person from whom the consideration moved : Ala. 2098. Note. — « See § 4702, note ^ § 4706. Want of Consideration (see also §§ 4034,4123,4739) is, in a few states, a defence to the note or bill as between the original parties : 111. 98,9 ; Tex." 272; Col." 110; or as against an indorsee receiving it after maturity: 111., Tex.," Col. ; " or as against an indorsee with notice at the time of transfer : Tex." So, failure of consideration, respectively : 111., Tex.," Col. ;" or partial failure : Vt. 911. Where a total want of consideration would be a defence, the defendant may prove a partial fadure in reduction of damages: N.H. 220,13; 111.; Tex.;" Col." See also § 4123. Note. — ° Non-negotiable or not ; see § 4741, note ". § 4707. Patent Rights. The laws of several states provide that when any note or bill (or other obligation : Ind.) is given in consideration of the sale of a patent or a patent right, the words " given for patent right " should be legibly written on its face OF THE INDORSEMENT. 575 above the signature ; and such note, in the hands of any holder or purchaser, is subject to the same defences as if in the hands of the original owner : Vt. 2008 ; Ct. 1877,148 ; N.Y. 1877,G5,1 ; V -a. Promissory Notes, ^ ; 0.3178; Ind. 0055; Minn. 124,116; Neb. 1,66,4; Tenn. 2481. But this does not apply to a note given solely for the use or purchase price of a patented article: N.Y. ib. 3. § 4708. Forged Bills. Generally, no party to a forged bill or note, his name being forged, is liable tliereon, and the purcliaser for value has no remedy against them ; but he may, in Pennsylvania, recover back the consideration paid with interest from any party or person previously holding or negotiating the same : Pa. Bills^ 10 ; Promissory Notes, 8. § 4709. Usury and Fraud. Usury is not available as a defence against any assignee or holder of a bond, bill, note, or other negotiable instrument, who received it bona fide, before maturity, for a valuable consideration, without notice thereof: Pa. Interest, 2; 0. 3183; Mich. 1596; Minn. 1879,66,3; Md. 36,2. But the maker may nevertheless recover the usurious interest paid by him from the original holder : Minn. Fraud in obtaining the execution of the instrument is a defence as against any per- son, even a hona-fide indorsee: 111. 98,10; Minn. 1883,114,1; unless the person was guilty of negligence in signing such instrument : Minn. So also, except as against an indorsee who received it before maturity : Col." 111. If the consideration was wholly or partly money won at play or gaming (§ 4132) the note, etc., is void (1) as against all persons but purchasers for value without notice : Mass. 99,5. (2) It is void as against all persons, even including assignees or indorsees without notice: Ark." 3407 ; N.M.« 2294. If the holder of a negotiable note has been notified in waiting by the maker that said note was obtained by conspiracy or fraud, he must sue within one year after such notice, or six months after the note became due ; and this applies to indorsees after maturity as if they were the holders to whom the notice was given : Ct- 1878,36. Note. — ■ '» Applies also to non-negotiable contracts, judgments, etc. The same would be law in many states. See § 4032. Art. 471. Of the Indorsement. § 4710. General Principles. One who agrees to indorse a negotiable instrument is bound to write his signature upon the back of the instrument if there is sufficient space thereon for that purpose. When there is not room for a signature upon the back of a negotiable instrument, a signature equivalent to an indorsemont thereof may be made upon a paper annexed thereto. An indorsement may be general or special. A general indorsement is one by which no indorsee is named. A special indorsement specifies the indorsee. A negotiable instrument bearing a general indorsement cannot be afterwards spe- cially indorsed ; but any lawful holder may turn a general indorsement into a special one by writing above it a direction for payment to a particular person. A special indorsement may, by express words for that purpose, but not otherwise, be so made as to render the instrument not negotiable: Cal. 8109-8115; Dak. Civ. C. 1837-1843 Uta. t6. 17-23. § 4711. Warranty by the Indorser. By the laws of Georgia, every transferrer of a neiTotiable instrument, whether by indorsement or delivery, warrants. (1) unless otherwise agreed by the parties, that he is the lawful holder and has a 576 NEGOTIABLE PAPER. ri^^ht to sell, that the instrument is genuine, and that he has no knowledge of any fact which proves the instrument to be worthless, either by insolvency of the maker, payment, or otherwise : Ga. 2778. Every indorser of a negotiable instrument (unless his indorsement is qualified : Cal., Uta.) warrants to every subsequent bolder thereof who is not liable thereon to him, — 1. That it is in all respects what it purports to be. 2. That he has a good title to it. 3. That the signatures of all prior parties are binding upon them. 4. That if the instrument is dishonored, the indorser will, upon notice thereof, duly given to him, or without notice, where it is excused by law, pay the same with interest, unless otherwise exonerated: CahSllG; Dak. Civ. C 1844; Uta. ib. 24. § 4712. Indorsement in Blank. Generally, an indorsement in blank is a good indorse- ment ; and in Maryland, it is not necessary for the holder to fill in his name before obtaining judgment : Md. 35,8. An indorser in blank on a promissory note is entitled to notice of non- payment like other indorsers. Blank indorsements of negotiable paper may always be explained between the parties themselves or those taking with notice of dishonor or of the actual facts of such indorsements : Ga. 3808. An Indorsee in Due Course is one who in good faith, in the ordinary course of business, and for value, before its apparent maturity or presumptive dishonor, and without knowledge of its actual dishonor, acquires a negotiable instrument duly indorsed to him, or indorsed generally, or payable to the bearer : Cal. 8123 ; Dak. Civ. C 1852 ; Uta. ib. 30. § 4713. Anomalous Indorsement. Every person becoming a party to a promis- sory note payable on time by a signature in blank on the back, is entitled to notice like an indorser: Mass. 77,15. So, in Iowa; but notice is sufficient if given within reasonable time, and the guarantor is chargeable without notice if the holder show affirmatively that the guarantor has received no detriment from the want of notice : Io.« 2090. In Iowa, the blank indorsement of an instrument for the payment of money (prop- erty or labor) by a person not a payee, indorsee, or assignee thereof, (1) is deemed a guaranty of the performance of the contract : lo." 2089. (2) It effects a contract of ordinary indorsement as between the indorser and the payee or subsequent holders : Ct. 1884,8.3 ; Ky.* 22,14. Guaranty. The laws of Michigan provide that the guaranty of the payment or collection of any promissory note shall be negotiable, and pass to the holder of the note, whether in- dorsed there(m or written or printed upon a separate paper ; and the assignment, indorsement, or transfer of any promissory note, the payment or collection of which shall have been guaran- teed, shall operate as, and be an assignment of, all guaranties of any such note, and the holder of such note may maintain an action upon any and all such guarantees in his own name, subject to all the equities existing between the guarantor and the person to whom such guaranty was made : Mich. 1590. A guarantor by anomalous indorsement is also liable to the action of an indorsee, assignee, or payee, if due diligence has been used in prosecuting as against the maker : lo. 2091. Notes. — " Applies also to non-negotiable instruments. * Unless a different purpose be expressed in the indorsement, or the note can legally be placed on the footing of a bill of exchange. § 4714. Indorsement after Maturity makes the indorsee liable to any defence by the maker which he might have set up as against the payee (or any intermediate holder) : 0. 3173; III 98,11 ; Kan. 14,2; Neb. 1,41,4; Tex. 265; Col." 108. "Be- fore notice of the assignment" given the defendant : Tex. And in such case any set-ofi'may be allowed M-hich would have been allowed as against any such assignor after maturity : 111. 98,12. So, in Texas, any "discount." Past-Due Paper. So, in Georgia, a person receiving a note or bill after it is due, is charged with notice of its dishonor, and takes it subject to all the equities existing between the original parties thereto : Ga. 2786. ACCEPTANCE, PAYMENT, AND PROTEST. 677 And if there are several notes constituting one transaction, but due at different times, the fact that one is overdue and unpaid shall be notice to the purchaser of all to put him on his guard as to each : Ga. Note. — <» Applies also to non-negotiable instruments, as in § 4706. § 4715. Payment. No maker of such bill, note, or negotiable instrument, or other person liable thereon, can, in Colorado, allege payment to the payee, made after notice of assignment, as a defence against the assignee : 111. 98,6; Col." 106 ; see ^ 4744. But if the bill or note was indorsed before due, the defendant may give in evidence and set-ofF as against the indorsee any payment made before indorsement of which the indorsee had notice at the time: 0. 3174 ; Kan. 14,3 ; Neb. 1,41,5 ; Col." 109. The obligation of a party to a negotiable instrument is extinguished, — 1. In like manner with that of parties to contracts in general ; or, 2. By payment of the amount due upon the instrument, at or after its maturity, in good faith and in the oi'dinary course of business, to any person having actual pos- session thereof, and entitled by its terms to payment : Cal. 81 04 ; Dak. Civ. C. 1880 ; Uta. ib. 58. If, after its extinction, a negotiable instrument comes into the possession of an indorsee in due course, the obligation thereof revives in his favor : Dak. Civ. C. 1881. Note. — " See § 4741, same note. Art. 472. Acceptance, Payment, and Protest. § 4720. Form of Acceptance, (a) The statute of Anne, § 5, as amended by 1 & 2 Geo. IV. C. 78, § 2, is re-enacted in many states ; and no acceptance of any inland bill of exchange is sufficient to charge any person unless written upon the bill: Cal. 8193-4; Dak. Civ. C. 1895-6; Uta. ih. 72-3; S.C. 1293. (b) So, in many others ; except that an acceptance written on a paper other than the bill will only bind the acceptor as against a person to whom it was shown, and who on the faith thereof gave value for the bill : KY. 2,4,2,6-7 ; Kan. 14, 8-9 ; Mo. 533,534 ; Ark. 459,460 ; Cal. 8196 ; Nev. 14-15 ; Wash. 2302-3 ; Dak. Civ. C. 1898 ; Ida. ih. 1874-5. p. 653, §§ 6,7 ; Uta. ih. 75 ; Ariz. 3469,3470. (C) But in a few, it is sufficient if the acceptance be in writing : Me. 32,10 ; Pa. Bills, 2 ; Mich. 1583 ; Wis. 1681 ; Minn. 24,13 ; Ore. 48,7 ; Ala. 2101 ; Miss. 1133. And by the statute of Anne, if a person refuse to accept the bill by under- writing on the bill or as above respectively, the payee may cause the bill to be protested (as in the case of foreign bills) ; this is re-enacted in several (and see § 4728) : Kan. 14,11 ; S.C. 1292; Miss. ; Ariz. 3471. So, in many states, every holder of a bill presenting it for acceptance may require the acceptance to be written on the bill ; a refusal so to do is equivalent to a refusal to accept, and the bill may be protested accordingly : N.Y. ih. 9 ; Mo. 536 ; Ark. 462 ; Cal. ; Nev. 17 ; Wash. 2305 ; Dak. ; Ida. ih. 9 ; Uta. ; Ala. 2103 ; Miss. ; Ariz. 3472. The holder of a bill of exchange maj^ without prejudice to his rights against prior parties, receive and treat as a sufficient acceptance, — 1. An acceptance written upon any part of the bill or upon a separate paper ; 2. An acceptance qualified so far only as to make the bill payable at a particular place within the city or town in which if the acceptance was unqualified it would be payable ; or, 3. A refusal by the drawee to return the bill to the holder after presentment, in which case the bill is payable immediately, without regard to its terms : Cal. 8195; Dak. Civ. C. 1897 ; Uta. "ib. 74. 37 578 NEGOTIABLE PAPER. S 4721. Promise to Accept. In most states, an unconditional promise in writincr to accept a bill before it is drawn is deemed an actual acceptance in favor of every person who. upon the faith thereof, so gave value for the bill : N.Y. ib. 8; Kan. 14,10; Mo.' 535; Ark. 461; Cal. 8197; Nev. 16; Wash. 2304; Dak. Civ. C. 1899; Ida. ib. 8 ; Uta. ib. 76 ; Ala. 2102. The acceptor of a bill of exchange may cancel his acceptance at any time before deliveriug the bill to the holder, and before the holder has, with the consent of the acceptor, transferred his title to another person who has given value for it upon the fuith of such acceptance. The acceptance of a bill of exchange admits the signature of the drawer, but does not admit the signature of any indorser to be genuine : Cal. 8198-9 ; Dak. Civ. C. 1900-1901; Uta. ib. 77-8. Conditional Acceptance. An acceptance of a bill or order may, in Georgia, be con- ditioned, or payable out of a certain fund : Ga. 2779. In all cases (i. e., whether the acceptance be conditional or of the ordinary kind) the acceptor has a lien on the funds or property of the drawer in his hands for the payment of the acceptance in his behalf: Ga. 2779. But nothing herein is, in many states, to prevent any person to whom a promise to accept the bill may have been made, and who, on the faith of such promise, shall have drawn or negotiated the bill, from suing and recovering damages from the party so re- fusing to accept: N.Y. i6. 10; Kan. 14,12; Mo. 537 ; Ark. 463 ; Nev. 18; Wash. 2306; Ida. ib. 10; Ala. 2104; Ariz. 3473. § 4722. Time of Acceptance. And in many, every person upon whom a bill of exchange is drawn, and to whom the same is delivered for acceptance, who shall destroy such bill, or shall refuse within twenty-four hours after such delivery, or such other period as the holder may allow, to return the bill, accepted or non-accepted, to the holder, shall be deemed, to have accepted the same: N.Y. iS. 11 ; Kan. 14,13; Mo. 538 ; Ark. 464; Nev. 19 ; Wash. 2307 ; Ida. ib. 11 ; Ala. 2105 ; Ariz. 3474. But in two, the drawee at the first presentation has until 2 p. M. of the following business day to decide ; but the acceptance, whenever made, dates from the day of presentation : Mass. 77,17; R.I. 142,5. § 4723. Presentment and Demand, In two states, the Stat. 1 & 2 Geo. IV. C. 78, § 1, is in effect re-enacted ; and if a person accept a bill payable at the house of a banker or other place, witliout further expression in the acceptance, the presentment of the bill for payment may be made either at such place or as it might have been if no place had been specified in the acceptance ; but if the acceptor shall in his acceptance express that he accepts the bill payable at a banker's house or other place only, and not otherwise or elsewhere, such acceptance shall be deemed a qualified acceptance: Va. 141,1; W.Va. 12,1. But in the case of bills, whether the acceptance be general or qualified (§ 4513), it is not necessary, as against the acceptor, nor, in the case of a note, as against the maker, to aver or prove presentment for payment at the time or place specified in the note, bill, or acceptance : Va. 141,1 ; W.Va. ; Cal. 8130 ; Dak. Civ. C. 1855 ; Uta. ib. 33. The maker or acceptor may, (1) however, set up as a matter of defence any loss sus- tained by him by reason of the failure to raake such presentment : Va., W.Va. (2) If the instrument is by its terms payable at a specified place, and he is able and willing to pay it there at maturity, sucli ability and willingness are equivalent to an ofier of payment upon his part : Cal., Uak., Uta. Presentment for Acceptance. At any time before a bill of exchange is payable the bolder may present it to the drawee for acceptance, and if acceptance is refused the biU. is dishonored. Presentment for acceptance must be made in the following manner, as nearly as by reason- able diligence it is practicable : — 1. The bill must be presented by the bolder or his agent; 2. It must be presented on a business day, and within reasonable hours j ACCEPTANCE, PAYMENT, AND PROTEST. 579 3. It must be presented to the drawee, or, if he be absent from his place of residence or business, to some person having cliarge thereof or employed therein ; and, 4, The drawee on such presentment may postpone his acceptance or refusal until the next day. If the drawee have no place of business, or if his place of business or residence cannot with reasonable diligence be ascertained, presentment for acceptance is excused, and the bill may be protested for non-acceptance. Presentment for acceptance to one of several joint drawees and refusal by him dispenses with presentment to the others. A bill of exchange which specifies a drawee in case of need must be presented to him for acceptance or payment, as the case may be, before it can be treated as dishonored. When a bill of exchange is payable at a specified time after sight the drawer and indorsers are exonerated if it is not presented for acceptance within ten days after the time which would suffice with ordinary diligence to forward it for acceptance, unless presentment is excused : Cal. 8185-9; Dak. Civ. C. 1890-4; Uta. ib. 67-71. In order to hold indorsers, the holder of a bill or note must cause it to be presented at the place where by its terms it is payable, or, if no place be specified, then to the person himself : Mon. G. L. 104. Presentment for Payment. If a bill of exchange is by its terms payable at a particular place, and is not accepted on presentment, it must be presented at the same place for payment when presentment for payment is necessary. A bill of exchange accepted payable at a particular place must be presented at that place for payment when presentment for payment is necessary, and need not be presented elsewhere. If a bill of exchange payable at sight or on demand, without interest, is not duly presented for payment within ten days after the time in which it could with reasonable diligence be trans- mitted to the proper place for such presentment, the drawer and indorsers are exonerated, unless such presentment is excused. Mere delay in presenting a bill of exchange payable with interest, at sight or on demand, does not exonerate any party thereto : Cal. 8211-4 ; Dak. Civ. C. 1907-1910 ; Uta. ib. 84-7. Presentment of a negotiable instrument for payment, when necessary, must be made as follows as nearly as by reasonable diligence it is practicable : — 1. The instrument must be presented by the holder; 2. The instrument must be presented to the principal debtor, if he can be found at the place where presentment should be made ; and if not, then it must be presented to some other person having charge thereof, or employed therein, if one can be found there ; 3. An instrument which specifies a place for its payment must be presented there ; and if the place specified includes more than one house, then at the place of residence or business of the principal debtor, if it can be found therein ; 4. An instrument which does not specify a place for its payment must be presented at the place of residence or business of the principal debtor, or wherever he may be found, at the option of the presentor ; and, 5. The instrument must be presented upon the day of its maturity, or, if it be payable on demand, it may be presented upon any day. It must be presented within reasonable hours ; and, if it be payable at a banking house, within the usual banking hours of the vicinity ; but, by the consent of the person to whom it should be presented, it may be presented at any hour of the day ; 6. If the principal debtor have no place of business, or if his place of business or residence cannot with reasonable diligence be ascertained, presentment for payment is excused : Cal. 8131 ; Dak. Civ. C. 1856 ; Uta. ib. 34. Excuse of Presentment and Notice. The presentment of a bill of exchange for ac- ceptance is excused if the drawee has not capacity to accept it. Delay in the presentment of a bill of exchange for acceptance is excused when caused by circumstances over which the holder has no control. Presentment of a bill of exchange for acceptance or payment and notice of its dishonor are excused as to the drawer, if he forbids the drawee to accept or the acceptor to pay the bill, or if at the time of drawing he had no reason to believe that the drawee would accept or pay the same: Cal. 8218-8220 ; Dak. Civ. C. 1911-3: Vta. ib. 88-90. In two states, the Eng. Stat. 2 & 3 Will. IV., C. 98, is re-enacted ; and if a bill wherein the drawer has expressed that it is to be payable in any place other than that by him mentioned therein to be the residence of the drawee, shall not, on presentment thereof for ac- 580 NEGOTIABLE PAPER. ceptauce, be accepted, such bill may without further presentment to the drawee be protested for non-payment in the place in which it shall have been by the drawer expressed to be pay- able, unless the amount thereof be paid to the holder on the day in which the bill would have become payable had it been duly accepted : Va. 141,2 ; W.Va. 12,2. A bill of exchange is payable, — 1. At the place where by its terms it is made payable ; or, 2. If it specify no place of payment, then at the place to which it is addressed ; or, 3. If it be not addressed to any place, then at the place of residence or business of the drawee, or wherever he may be found. If the drawee has no place of business, or if his place of business or residence [cannot] with reasonable diligence be ascertained, presentment for pay- ment is excused, and the bill may be protested for non-payment : Cal. 8176 ; Dak. Civ. C. 16S7 ; Uta. ib. 64. The plaintiff in an action on a promissory note cannot recover unless he prove a demand made upon the maker prior to the commencement of the suit ; and he cannot so recover upon a note payable at a place certain unless he pi'ove a demand so made at such place : Me. 32,10. A demand made at any time during the days of grace is, in Iowa, sufficient to charge the indorser: lo. 2093. So, a demand on the third day of grace : Neb. 1,41,3. A negotiable instrument which does not specify a place of payment is payable at the resi- dence or place of business of the maker, or wherever he may be found : Cal. 8100 ; Dak. Civ. C. 1831 ; Uta. ih. 11. § 4724. Foreign Bills. In a foreign bill, the presentment for payment made or to be made out of the State at an office or house referred to only in the margin of the bill or below the drawee's name does not charge the indorsers unless such office was at the date of the bill the actual place of business or residence of the drawee, or it is so expressed in the reference, or it appear by the certificate of protest that upon diligent inquiry the place of busi- ness or residence of the drawee could not be found : Pa. Bills, 6. Notice of the dishonor of a foreign bill of exchange can be given only by notice of its protest. Protest must be made by a notary public, if with reasonable diligence one can be obtained, and if not, then by any reputable person in the presence of two witnesses. Protest must be made by an instrument in writing, giving a literal cojjy of the bill of ex- change, with all that is written thereon, or annexing the original, stating the presentment and the manner in which it was made ; the presence or absence of the drawee or acceptor, as the case may be ; the refusal to accept or to pay, or the inability of the drawee to give a binding acceptance ; and in case of refusal, the reason assigned, if any ; and, finally, protesting against all the parties to be charged. A protest for non-acceptance must be made in the city or town in which the bill is presented for acceptance, and a protest for non-payment in the city or town in which it is presented for payment. A protest must be noted on the day of presentment or on the next business day ; but it may be written out at any time thereafter. The want of a protest of a foreign bill of exchange or delay in making the same is excused in like cases with the want or delay of presentment. Notice of protest must be given in the same manner as notice of dishonor, except that it may be given by the notary who makes the protest. If a foreign bill of exchange on its face waives protest, notice of dishonor may be given to any party thereto, in like manner as of an inland bill ; except that if any indorser of such a bill expressly requires protest to be made by a direction written on the bill at or before his indorse- ment, protest must be made and notice thereof given to him and to all subsequent indorsers. One who pays a foreign bill of exchange for honor must declare, before payment, in the presence of a person authorized to make protest, for whose honor he pays the same, in order to entitle him to reimbursement : Cal. 8225-8233; Dak. Civ. C. 1915-1923; Uta. ib. 91-100. § 4725. Apparent Maturity. The apparent maturity of a negotiable instrument pay- able at a particular time is tlie day on which by its terms it becomes due, or, when that is a holiday, the next business day. A bill of exchange payable at a certain time after sight, which is not accepted within ten days after its date, in addition to the time which would suffice with ordinary diligence, to for- ACCEPTANCE, PAYMENT, AND PROTEST. 581 ward it for acceptance, is presumed to have been dishonored: Cal. 8132-8133; Dak. Civ. C. J 853; Uta. ib. 36. The apparent maturity of a bill of exchange payable at sight or on demand is, 1. If it bears interest, one year after its date ; or, 2. If it does not bear interest, ten days after its date, in addition to the time which would suffice with ordinary diligence to forward it for acceptance. The apparent maturity of a promissory note payable at sight or on demand is, - 1. If it bears interest, one year after its date ; or, 2. If it does not bear interest, six months after its date. Where a promissory note is payable at a certain time after sight or demand, such time is to be added to the periods mentioned in the last section : Cal. 8134-G; Dak. Civ. C 1859-18fil ; Uta. ib. 37-9. § 4726. Days of Grace, (a) By the Statute of Anne (see § 4720) three days' grace are allowed, after negotiable paper is due, before it may be protested for non-payment. The same is law, as to all bills and notes payable at a future day certain in most of the states : N.H. 220,8 ; Mass. 77,9 ; Me. 32,9 ; Vt. 2009 Pa. Bills, 3 ; 0. 3175 ; Ind. 5514; 111. 98,15 ; Mich. 1581 ; Wis. 1680 ; lo. 2092 Minn. 23,17 ; Kan. 14,4 ; Neb. 1,41,3 ; Del. 63,2 ; N.C. 43 ; Ark.« 472 ; Tex. 276 Ore. 48,5 ; Nev. 8 ; Col. 114 ; Wash. 2300 ; Dak. Civ. C. 1889 ; Ida. 1874-5, p. 655,20 ; Mon. G. L. 100 ; Ala. 2096 ; La. D. 331 ; Ariz. 3483. So, probably, also in the other states. And in several, it is specified that bills at sight are entitled to the days of grace : Mass. ; Me. ; N.J. ib. 3 ; 0. ; Ind. ; Mich. ; Wis. ; lo. ; Minn. ; N.C. ; Ore. ; Wash. ; Dak.; S.C. 1297. In Georgia, the code specifies that the last day of grace is the day of maturity : Ga. 2783&. But (B) bills, drafts, or orders drawn payable (1) at sight are, in many states, deemed due and payable on presentation without days of grace : Vt. ; R.I. 142,4; Ct. 18,1,3; N.Y. 1857,416,1; Pa. i6. 4; 111.; Kan.; Del.; W.Va. 1882,77; Tenn. 2722 ; Mo. 550 ; Nev. ; Col. ; Ida. ; Mon. ; Ga. 2784 ; La. D. 332 ; N.M. 1729 ; Ariz. So, of bills, etc., drawn without any time specified : Minn., Del. So, in others, of checks or bills appearing on their face to have been drawn upon any bank or banker, whether payable at sight, at a day certain, or at any number of days after sight : N.Y. 1857,416,2 ; N.J. ib. 4; Pa. ; 0. ; Del. V. 17,143. So, in one, except when payable at sight: Mich. 1587. So, in several, of any checks drawn on a bank :. Mass. 77,10 ; Vt. ; Ct. ; 0. ; Kan. ; Col.; Dak. Civ. C. 1934; Mon. So, of all non-negotiable instruments: Ala. So, of contracts payable in any other way than in money : Vt., Ala. (2) So, in many states, there is no grace upon notes payable on demand : N.H. ; Mass. ; Me. ; Vt. ; Ct. ; 111. ; Mich. 1582 ; Wis. ; lo. 1876,81 ; Minn. 23,18 ; N.C. ; Mo. ; Ore. 48,6 ; Ga. 2791 ; La. ; N.M. But in two, it is specified that bills or notes payable on demand are entitled to grace after presentment: N.J., Dak. So, of notes payable at no fixed time : N.J. But an express stipulation may always be made to the contrary of the above pro- visions : N.H., Mass., Ct, Mich., Wis., Minn., N.C, Dak. (C) Days of grace are abolished in all cases, in three states : Cal. 8181 ; Uta. ib. 66 ; N.M. In Georgia, days of grace are always allowed in cases where notice is necessary ($ 4728) : Ga. 2781. " Note. — " " According to the rules of the law-merchant." § 4727. Holidays. (See also § 4134.) Appended is a table of the days in which a note or bill need not be paid, presented for acceptance, or protested. A note or bill falling due and payable {i. e., after grace, if allowed) on these days or on Sunday is generally payable, or presentable for acceptance, (a) on the day be- 582 NEGOTIABLE PAPER. fore : N.H. 220,9 ; Mass. 77,8 ; 1882,49 ; Me.'' 32,9 ; Vt.'' 2010-2 ; E.I. 142,8 and 9 ; Ct. 18,1,4; 1875,21; X.Y. 1875,27,1; 1881,30; N.J. Promissory iVo^cs, 14 ; Holi- days, 1 ; Pa. Bills, 5 ; Holidays, 1 and 5 , Promissory Notes, 5-7 ; 0. 3176-7, Anit. Vol.3; 1884, p. 104; Ind. 5517; lU. 98,17; Mich. 1591; Wis. 1684,2577; lo. 2094; Minn. 2410 ; Kan. 14,5 ; Neb. 1,41,8 ; 1885,56 ; Md. 35,10,11 ; 1880,426 ; 1882,23; Del. V. 11,0.195; 1875,192; Va. 141,3; W.Va. 12,3; 1882,77; N.C. 3784 ; Ky. 51,1-2 ; Tenn. 2723 ; Mo. 551 ; Ark. 465 ; Tex. 2835 ; Nev. 8 and 28; Col. 115 and 1630 ; Wash. 2301 ; Ida. ih. 20; Mon. G. L. 101 ; Uta. 1882, 30,2 ; 1882,41,35 ; Ga. 2783 ; Ala." 2097 ; 1883,117 ; Miss. 1132 ; Fla. 90,4 ; D.C. 993; U.S. 1881,2; 1879,38. If the day before be Sunday or a holiday, it is payable, in most states, on the previous Saturday or other secular day : N.H., Mass., E.I., Ct., N.Y., Pa., 111., Wis., lo., Kan., Md., Va., W.Va., Ky., Tenn., Mo., Miss., Fla. But in several, on the Tuesday following : Me. ; jST.J. Holidays, 2 ; N.C. ; Uta. Ga. ; Ala.; La. D. 1114. So, in several, notice may be given on the first business day following such holiday : N.H ih. 10 ; Mass.; N.J. ib. 15; Pa.; Minn. ; Md. ; Va. 141,4; W.Va. 12,4; 1882,77; Ark In one state, on the Wednesday following : N.J. Nothing in this provision, however, renders invalid a presentation notice or demand (1) on any such holiday other than Sunday : Pa. ih. 3 Mich. ; (2) " as heretofore, at the option of the holder :" Del. (B) In other states, a bill or note falling due on such holiday is payable on the secu lar day following : Vt.'' 2011 ; Va. 1880,103,1 ; Cah 8132 ; Ore. 1885, p. 50 ; Dak. Civ C. 1857; La.; N.M. 1730; Ariz. 3483; 1885,19. January 1 : Me., Vt., Ct., N.Y., N.J., Pa., 0., Ind., 111., Mich., Wis., lo., Minn., Kan., Neb., Md., Del., Va., W.Va., N.C, Tenn., Mo., Ark., Tex., Nev., Col., Ida., Ga., Ala., Miss., Fla., La., N.M., Ariz., D.C. January 8 : La. February 22 : N.H. ; Mass. ; Me. : R.L ; Ct. ; N.Y. ; N.J. ; Pa. ; 0. ; 111. ; Mich. ; Wis. ; Minn. ; Neb. ; Md. ; Del. ; Va. ; W.Va. ; N.C. ; Ky. ; Mo. ; Tex. ; Nev. ; Col. ; Ga. ; Ala.; Fla.; La.; Ariz. 1881,98; D.C. " Mardi gras : " La. Good Friday : Pa., Minn., Md., La. March 2 : Tex. March 4, in New Orleans : La. April 21 : Tex. April 22 : Neb. April 26 (Decoration Day) : Ga. Any day appointed by the Governor for a Fast : N.H., Mass., ]\Ie., Vt., R.I., Ct., N.Y., N.J., Pa., 0., Ind., 111., Mich., lo., Kan., Neb., Md., Del., Va., Ky., Tenn., Tex., Col., Mon., Ga., Fla., N.M., Ariz., D.C. May 10 : N.C. May 20 : N.C. May 30: N.H., Mass., Me., Vt, R.I., Ct., N.Y., N.J., Pa.,'= 0., 111.. Mich., lo.. Neb., Col. July 4 : N.H., Mass., Me., Vt., R.I., Ct., N.Y., N.J, Pa., 0., Ind., 111., Mich., Wis., lo., Minn., Kan., Neb., Md., Del., Va., W.Va., N.C, Ky., Tenn., Mo., Ark., Tex., Nev., Col., Wash., Ida., Mon., Ga., Ala., Miss., Fla., La., N.M., Ariz., D.C. Any general election day : N.Y., N.J., Pa.," Wis., Md., Mo., Tex., Fla., Ariz. Any day appointed by the Governor for Thanksgiving: N.H., Mass., Me., Vt., R.I., Ct., N.Y., N.J., Pa., 0., Ind., 111., Mich., Wis., lo., Minn., Kan., Neb., Md., Del., Va., N.C, Ky., Tenn., Mo., Tex., Nev., Col, Mon., B.C., Ga., Ala., Fla., N.M., Ariz., D.C. Chriatmas Day : N.H., Mass., Me., Vt., R.I., Ct., N.Y., N.J., Pa., 0., Ind., 111., Mich., ACCEPTANCE, PAYMENT, AND PROTEST. 583 Wis., lo., Minn., Kan., Neb., Md., Del., Va., W.Ya., N.C., Ky., Tenn., Mo., Ark., Tex., Nev., Col., Wash., Ida., Mon., Ga., Ala., Miss., Fla., La., N.M., Ariz., D.C. If such holiday fall on a Sunday, the Monday following is, in most states, deemed a holiday as before, and the bill or note due on such holiday must be presented the Saturday preceding : N.H. ; Mass. ; E.I. ; ^ Ct. 1885,21,2 ; N.Y. ih. 2 ; Pa. ih. 2 ; 0. ; 111. ; Mich. ; Wis. ; Minn. ; Neb. ; Md. 35,11 ; 1882,23 ; Del. V. 16,446 ; V. 17,551 ; W.Va. ; KC. ; Ky. ; Mo. ; Tex. 2837 ; CoL ; Ga. 2783a; Fla. 90,5 ; D.C. But in others, on the Tuesday following, as before : Me.,^ N.J., Va., Uta., Ala., Ariz. So, of bills falling due on the Monday : Va. ib. 2 ; N.C. If it fall on a Saturday, the bills due on the Sunday following are payable, in a few states, on the Monday following : N.C. 3785 ; Ga. ; Ala. If it fall on a Monday, in several, bills due on such day are pay- able on the Tuesday following : Neb. ; N.C. 3786 ; Ga. Any such holiday falling as one of the days of grace is, however, counted as one of them : Nev,, Ida., Ariz. But in two states, otherwise ; and it is excluded : Dak. Civ. C. 1889 ; La. Holidays for Other Purposes.-^ In a few states, the same principle is extended to all contracts which are to be performed on such Sundays or holidays ; and they are to be performed (1) on the day previous, etc., as above : N.H., Mass. ; (2) on the day suc- ceeding : Dak. Civ. C. 2118. See also § 1023. Civil process cannot generally be served on holidays enumerated in § 4727 ; see in Part IV. Notes. — "■ When subject to grace. ^ When not subject to grace. "^ This seems to follow from § 4137, though not specially enacted as to bills and notes. '^ But if the 30th of May fall on Sunday, the day preceding is deemed a holiday, and the bill is payable on the Friday previous. * If Christ- mas day fall on Sunday, the Monday following is not a holiday in these states, f See 39 and 40 Geo. III. C. 42 ; 7 and 8 Geo. IV. C. 15. § 4728. Protest for Non acceptance. By the statute of Anne, if a bill is not accepted according to § 4720, no drawer is liable for any damage or costs on a bill of over £20, unless protest be made and the same be sent, or otherwise notice thereof be given, within fourteen days after protest, to the party from whom such bill was re- ceived, or left in writing at the place of his usual abode. This is re-enacted, $100 being substituted for £20, in one state : S.C. 1293-4. So, in two others, but there is no money limit : N.C. 42 ; Tenn. 2718. So, in several, all bills of exchange drawn in the State upon a person in the State over §8 are subject to the same law as foreign bills of exchange as to protest for non- acceptance or non-payment: 1^ J. Promissory Notes, 2; S.C. 1292; Miss. 1128 ($20). And it is probable that the law-merchant regarding protest exists in all other states. So, notice of non-acceptance or non-payment or both of said instruments shall be required according to the rules and principles of the commercial law : lo. 2092. The notary is required to give notice (^ 4731) to the maker and each and every mdorser, im- mediately after protest : Dak. Pol. C. 17,4. The holder of the bill or note mmj (see § 4725) fix the liability of the parties by giving due protest and notice according to the principles ot the law-merchant : Ark. 472 ; Tex. 273. A negotiable instrument is dishonored when it is either not paid or not accepted, according to its tenor, on presentment for that purpose, or without presentment where that is excused. A notice of the dishonor of a negotiable instrument may be given, — 1. By a holder thereof ; or, 2. By any party to the instrument who might be compelled to pay it to the holder, and who would, upon taking it up, have a right ■ to reimbursement from the party to whom the notice is given. A notice of dishonor may be given in any form which describes the instrument with reason- able certainty, and substantially informs the party recei^dng it that the instrument has been dishonored. 584 NEGOTIABLE PAPER. A notice of dishonor may be given, — 1. By delivering it to the party to be charged personally at any place ; or, 2. By delivering it to some person of discretion at the place of residence or business of such party, apparently acting for him ; or, 3. By properly folding the notice, directing it to the party to be charged at his place of residence, according to the best information that the person giving the notice can obtain, de- positing it in the post-office most conveniently accessible from the place vrhere the presentment was made, and paying the postage thereon. In case of the death of a party to whom notice of dishonor should otherwise be given, the notice must be given to one of his personal representatives, or, if there are none, then to any member of his family who resided with him at his death ; or, if there is none, then it must be mailed to his last place of residence, as prescribed by subdivision 3 above. A notice of dishonor sent to a party after his death, but in ignorance thereof, and in good faith, is valid. Notice of dishonor, when given by the holder of an instrument or his agent otherwise than by mail must be given on the day of dishonor, or on the next business day thereafter. When notice of dishonor is given by mail, it must be deposited in the post-office in time for the first mail which closes after noon of the first business day succeeding the dishonor, and which leaves the place where the instrument was dishonored for the place to which the notice should be sent. When the holder of a negotiable instrument at the time of its dishonor is a mere agent for the owner, it is sufficient for him to give notice to his principal in the same manner as to an indorser ; and his principal may give notice to any other party to be charged as if he were himself an indorser. And if an agent of the owner employs a sub-agent, it is sufficient for each successive agent or sub-agent to give notice in like manner to his own principal. Every party to a negotiable instrument receiving notice of its dishonor has the like time thereafter to give similar notice to prior parties as the original holder had after its dishonor. But this additional time is available only to the particular party entitled thereto. A notice of the dishonor of a negotiable instrument, if valid in favor of the party giving it, inures to the benefit of all other parties thereto whose right to give the like notice has not then been lost: Cal. 8141-8151 ; Dak. Civ. C. 1863-1873; Uta. ib. 41-51. Excuse of Presentment and Notice. Notice of dishonor is excused, — 1. When the party by wliom it should be given cannot with reasonable diligence ascertain cither the place of residence or business of the party to be charged ; or, 2. When there is no post-office communication between the town of the party by whom the notice should be given and the town in which the place of residence or business of the party to be charged is situated; or, 3. When the party to be charged is the same person who dishonors the instrument ; or, 4. When the notice is waived by the party entitled thereto. Presentment and notice are excused as to any party to a negotiable instrument who informs the holder within ten days before its maturity that it wiU be dishonored. If, before or after the maturity of an instrument, an indorser has received full security for the amount thereof, or the maker has assigned all his estate to him as such security, presentment and notice to him are excused. Delay in presentment or in giving notice of dishonor is excused when caused by circum- stances which the party delaying could not have avoided by the exercise of reasonable care and diligence. A waiver of presentment waives notice of dishonor also, unless the contrary is expressly stipulated ; but a waiver of notice does not waive presentment. A waiver of protest on any negotiable instrument other than a foreign bill of exchange waives presentment and notice : Cal. 8I55-81G0; Dak. Civ. C. 1874-9 ;"Uta. ib. 52-7. A check, bill, or draft appearing on its face to be drawn upon any bank, banker, or broker, need not be protested for non-acceptance, nor notice given to the drawer, etc. : O. 3175; Mich. 1587. Protest for Non-payment. By the statute of Anne, though a bill be not paid before the expiration of three days after it is due, no drawer shall be liable unless protest be made and sent or notice given as in $ 4730.. This is re-enacted in one state : S.C 1293-4. Bills drawn out of the State upon persons in the State are liable to protest : Md. 35,3. ACCEPTANCE, PAYMENT, AND PROTEST. 585 Protest may be made either of non-acceptance or of non-payment, and will charge the drawer : S.C. ; Miss. 1 129. A party to a negotiable instrument may require, as a condition concurrent to its payment by him, — 1. That the instrument be surrendered to him unless it is lost or destroyed, or the holder has other claims upon it ; or, 2. If the holder has a right to retain the instrument, and does retain it, then that a receipt for the amount paid, or an exoneration of the party paying, be written thereon ; or, 3. If the instrument is lost or destroyed, then that the holder give to him a bond, executed bv himself and two sufficient sureties, to indemnify him against any lawful claim thereon : Cal. s\S7 ; Dak. Civ. C. 1862 ; Uta. ib. 40. § 4729, Form of Protest. Generally, the protest of a bill or note (as in the case of a foreign bill, in Vermont, Virginia ; whether foreign or inland, in Maryland, Mis- souri ; by a notary duly certified under the hand and seal of the notary : N.H.; Mass. ; Vt. ; N.J. Promissory Notes, 9 ; lo. ; Neb. ; Md. 35,3 ; N.C. ; Ark. ; Tex. ; Cal. ; Ga. ; La. ; or, in New Jersey, North Carolina, Louisiana, for want thereof by a justice of the peace, or, in Maryland, North Carolina, a clerk of a court of record) is prima facie evidence (1) in most states, of the facts therein stated: N.H. 17,3; Mass. 77,22 ; Me. 32,4; Ct. 19,11,16; N.J. Evidence, 20; Promissory Notes, 12; Pa. Evidence, 70; Notaries, 13, 14; 0. 120; Ind. 460; Ilk 99,14; xMich. 632 ; lo. 3668; Minn. 26,7-8; Neb. 1,61,6; Va. 141,8; Tenn. 4536,2470; Mo. 2320; Ark. 2831,4770; Tex. 274; Cal. 795; Ore. 40,6 ; Nev. 337,340 ; Ida. 1874-5, p. 818,12 ; Mon. G. L. 912,923 ; Wy. 88,6 ; Ga. 3829; La. D. 326 and 329 ; N.M. 1731 ; Ariz. 2194; D.C. 988; (2) in many states, of such non-acceptance or non-payment and of presentment at the time and in the manner stated in the protest: Vt. 2006 ; Pa.; Wis. 176; Kan. 14,18; Neb. 2,349 ; Md. 35,6 ; Va. 1879, Ex. 117; W.Va. 12,7; N.C. 49; Ky. 22,12; 79,5-6; Mo. 552; Tex. ; Cal. ; Ala. 1336 ; Miss. 1636 ; (3) of notice to the drawer and indorsers : N.H. ; Mass. ; Me. ; Vt. ; Pa. ib. 71 ; Wis. ; Kan. 1883,118,1 ; Neb. ; Md. ib. 7 ; Va. ; W.Va. 12,8; 1882,20,7; N.C; Ky.; Tenn. 2471; Mo.; Ark. 2832; Tex.; CaL ; Ore.; Col. 2464; Dak. Pol. C. 17,6 ; Uta. 259 ; S.C." 1296 ; Ala. ; La. D. 325. Protest of Foreign Bills payable in a foreign state or country may be made accord- ing to the laws thereof, and if so made will be valid : N.Y. 1865,309,1 ; Md. 35,4. Note. — " The protest is such sufficient evidence of notice only where the notary is dead, or resides out of the district in which suit is brought. § 4730. Manner of Notice. It is, in a few states, declared to be sufficient notice of non-acceptance or non-payment of a bill or note if it be dii'ected by mail to the city or town where the person to be charged resided at the time of drawing, making, or indorsmg the note or bill, unless such person has added to his signature on the instru- ment the post-office to which he wishes the notice addressed : Ct. 18,1,6 ; N.Y. 1835, 141,1 ; Nev. 26; Ida. ib. 18; Mon. G. L. 104; Ala. 2111 ; Ariz. 3481. And when the city or town where the bill is payable or presentable is the one in which the person sought to be charged resides (or, in Massachusetts, New York, New Jersey, Michigan, Iowa, has a place of business ; or, in New York, New Jersey, the one indicated as such under his signature in the instrument ; or, in New York, New Jersey, Michigan, the one where he is reputed or believed to reside ; or, in Massachusetts, when for any other reason a notice given to the party in such city or town would be suffi- cient), notice may be served by mailing it in the post-office of such town, properly directed and addressed to such person at such town : Mass. 77,16 ; Vt. 2007; N.Y. 1857,416,3; ^.i. Promissory Notes, 16; 0.« 3176, Amt. ; Mich. 1586; lo. 2095; Va. 1877,37; Ala." 1879,143. But it must further be sufficiently directed to his residence or place of business in such town for the usual course of the mail and delivery by carriers therein : Mass. And it must be directed to the post-office nearest his residence : Vt., lo. 586 NEGOTIABLE PAPER. And it maybe deposited in the post-office nearest tlie place where payable: Vt. ; La. D. 327. " A waiver of demand and notice by an indorser is not valid unless in writing and signed by him: Me. 32,10; Tex. 268. ° Notice maybe given either personally or by post : Col. 2465; Dak. Pol. C. 17,-5; Uta. 258; Ga. 2781. It must be personal if the party reside within one mile of the town or in the town where protest is made : Col., Uta. And when a note or bill is not made payable at any place, notices of non-payment or non-acceptance may be served by depositing the same in a post-office, prepaid, directed to the drawer or indorser at his reputed place of post-office delivery, as ascertained by the best diligence in getting information: Mich. 1586; Minn. 26,7; Kan. 1883,118. The notary public protesting is required to give notice in writing immediately (1) by depos- iting- the same in the post-office, postage prepaid, directed to the party at his known or reputed place of residence: Kan.; Tex. 274; Dak.; La. D. 327; (2) by personal service upon such parties as reside within two miles (one mile, in Colorado) of the notary's residence ; otherwise, by mail or other safe conveyance: 111. 99,12; Ore. 40,4-5; Col. If such residence cannot be ascertained, the notice may be addressed to the person to be charged at the place where the bill or note was drawn : La. D. 328. Notice must generally be given within a reasonable time : Neb. 1,41,3 ; Men. G. L. 103-4; Ga. 2781; Miss. 1129. Within twenty-four hours after protest: Col. 2463; " hnmediately : " Hon.; within forty- eight hours thereafter: 111. 99,11. By the law of Georgia, notice of non-payment or non- ac«ei)tance is only necessary, to bind indorsers (1) when the instrument on its fece is made payable at a bank or banker's ; (2) when it is discounted at a bank or banker's ; (3) when it is left at a banker's office for collection : Ga. 2781. In other states, it probably is so necessary in all cases ; but see H 4701-2. The protest and notice must be recorded by the notary in a book : Tex. 274 ; La. D. 325 ; so, in most other states. Such record is evidence of the notice : La. See ^ 4729. JI'OTE. — ° Only when such town has a system of delivery by carriers. § 4731. Protest and Notice Abolished. lu Texas, protest and notice is rendered unnec- essary if suit is brought by a law which provides that "the holder of any bill or note nego- tiable may secure and fix the liability of any drawer or indorser, without protest or notice, by instituting suit against the acceptor or maker before the first term of the court to which suit can be brouglit after the right of action shall accrue, at the second such term after, if good cause be shown for the delay : " Tex. 262. And the drawer of a bill of exchange not accepted when duly presented is immediately liable for the payment thereof; and the holder may secure and fix such liability by suing, as above : Tex. 204. Waiver of Notice, etc. The indorsement may prescribe other conditions of demand, notice, etc.: Neb. 1,43,3. Parol testimony is inadmissible to prove that the drawer or indorser has released the holder from his obligation to use due diligence to collect the same : Me. 32,10 ; Tex. 268. See $ 4141. § 4732. Acceptance for Honor and Reference. The laws of two states re-enact the Eng. Stat. & 7 Will. IV. C. 58 ; and when a bill is accepted supra protest or for honor, or has a reference thereon in case of need, it is not necessary to present it to such acceptor for honor or referee until the day after it is due, or, if such acceptor for honor, etc., is in another town, to forward tlie bill to him for payment until such day after; and if that day fall on a Sun- day or legal holiday, not until the next secular day : Va. 141,5-6 ; 1877,37 ; W.Va. 12,5-6; 1882,77. On the dishonor of a bill of exchange by the drawee, and, in case of a foreign bill, after it has been duly protested, it may be accepted or paid by any person for the honor of any party thereto. The holder of a bill of exchange is not bound to allow it to be accepted for honor, but is bound to accept payment for honor. ACCEPTANCE, PAYMENT, AND PROTEST. 557 Au acceiJtor or payer for honor must write a memorandum upon the hill, stating therein for whose honor he accepts or pays, and must give notice to such parties, with reasonable dili- gence, of the fact of such acceptance or payment. Having done so, he is entitled to reimburse- ment from such parties, and from all parties prior to them. A bill of exchange which has been accepted for honor must be presented at its maturity to the drawee for payment, and notice of its dishonor by him must be given to the acceptor for honor in like manner as to au indorser; after which the acceptor for honor must pay the bill. The acceptance of a bill (jf exchange for honor does not excuse the holder from giving notice of its dishonor by the drawee: Cal. 8203-7; Dak. Civ. C. 1902-6; Uta. ib. 79-83. § 4733. Demand Notes. In two states, all bills or notes payable on demand are deemed due inunediately : N.C. 45 ; Ga. 2791. So, in two, when no time is specified for the payment of a bill, note, or order, it is deemed payable (1) on demand : Mass. 77,11 ; Ga. ; (2) immediately : Cal. 8099 ; Dak. Civ. C. 1830; Uta. ib. 10. In such case, they bear interest from the time they are demanded, unless otherwise expressed : N.C. But in one state, any negotiable promissory note payable on demand is considered overdue and dishonored if still unpaid after four mouths from date : Ct. 18,1,2. So, in others, sixty days is deemed a reasonable time, and a demand made after such time will not charge the indorsers : N.H. 220,11; Mass. 77,12; Vt. 2013; Minn. 24,11. So, in others, six months if the note is without interest : Cal. 8248 ; Dak. Civ. C. 1932; Uta. ib. 109. But if the demand be duly made, consequences follow as in time notes : N.H. ; Mass. ; Vt.-; Minn. 24,12. And the indorsers, if given due notice, are liable in the same way: N.H. 220,12; Mass. 77,13; Vt. 2014; Minn. Any matter is a legal defence on a demand note as against the indorsee which would be such against the promisee: Mass. 77,14; except matters arising after notice of the indorse- ment or transfer has been given the promisor : Mass. A demand note bears interest from date, the law presuming a demand instantly : Ga. 2056. § 4734. Death of Parties. Checks or demand drafts drawn by any person having funds on deposit may be paid by the depositary notwithstanding the death of such drawer, if pre- sented within ten days of date; and the same applies to -savings-bank orders if presented within thirty days of the date, or at any subsequent period, provided the depositary has not received actual notice of such drawer's death : Mass. 1885,210. Payee Dead. A bond, note, or other writing to a person or persons any of whom are dead at the time of execution is valid as if they were all alive, and may be proceeded on in the name of the personal representative of such person, or of the survivors: Va. 141,12. See also $ 4116. Death of Drawer, etc. If any note or bill, whether filled up before or after being signed or indorsed, shall be passed away within nine months after such drawer's or indorser's death by his agent, it is valid and binding on his estate, provided the holder received it in good faith without knowledge of the death : S.C. 1291. § 4735. Bill of Exchange is Payment. In several states, § 7 of the statute of Anne is re-enacted ; and if any person accepts (^. e., receives) a bill of exchange in satis- faction of a former debt or sum of money due unto him, the same is accoimted full payment thereof, whether or not such person, accepting any such bill for his debt, takes his due course to obtain payment thereof, by endeavoring to get the same accepted and paid and make his protest as aforesaid : N.J. ib. 5 ; S.C. 1295 ; Miss. 1131. And so, in one, § 8 is re-enacted, that "nothing herein is to discharge any remedy that any person may have against the drawer, acceptor, or indorser of such bill : " S.C. 588 NEGOTIABLE PAPER. Art. 474. Of the Parties. § 4740. Neither the drawer nor any other party can, generally, be sued until after protest for non-acceptance or non-payment ; see § 4728. § 4741. Who may be Sued. Suit may generally be brought against the drawer or maker, acceptor or indorsers, any or all of them, in the same action (1) jointly: N.Y.« Civ. C. 454 ; KJ. Practice, 29; 1884,108,2; 0." 5009 ; Ind.« 270,5516; Mich." 7345; Wis." 2609; Io.« 2550; Minn." 66,36; Kan." 80,39; Neb." 2,44; Va. 142,11 ; W.Va. 12,11 ; N.C." 186 ; Tenn." 2715 ; Ark."- * 469,482, 4943-4 ; Tex." 270 and 1207 ; Cal. 10383 ; Ore. Civ. C. 36 ; Nev." 1078 ; Wash." 16; Dak." Civ. C. 198; C. Civ. P. 14 ; Ida. C. Civ. P. 198 ; Mon." Civ. C. 20 ; G. L. 105 ; Uta." C. Civ. P. 240 ; Ga. 2782 ; Miss " 1134 ; Ariz." 2451 ; (2) jointly or severally : R.I. 142,2 ; Kan. 14,15 ; Neb. 1,41,6 ; (3) or any or either of them separately : Kan., Neb., Miss. But in Tennessee, the maker and indorsers can only be sued in a joint action, though any one or more of the indorsers can be sued in a joint and several action : Tenn. 2715,2719. And in several, no judgment can (except as below) be rendered against any person not primarily liable unless judgment has previously been, or is at the same time, rendered against the acceptor or principal obligor: Tex." 1207 ; Miss. 1135. See also § 4036. Judgment and costs for the full amount can only be recovered in one such action : Ark. 483. Execution is levied first against the parties primarily liable, as in Art. 510 : the makers and acceptors before indorsers and sureties: Miss. 1139. Parties paying the execution are entitled to remedies against the others, as in Art. 511 : Miss. 1140. In Tennessee, the drawer may be sued : Tenn. 2717. So, the drawee, after acceptance : Tenn. In several, any indorsee or holder may sue the indorser, having used first due dili- gence to obtain payment of the drawer, maker, or obligor: 0. 3172; Ind. 5504; Kan. 14,6; Neb. 1,41,2; Miss. 1124. This, of course, is law everywhere. Compare § 4702. And " due diligence " is defined to be a demand of payment made to the maker or drawee on the last day of grace, and notice of non-payment to the drawer or indorser within a reasonable time thereafter (unless the indorsement express other condi- tions) : 0. 3176, Amt. ; Kan. 14,7 ; Neb. 1,41,.3. See also § 4728. Every assignor [indorser], and his executors, of a note, is liable in an action by the assignee [indorsee], his executors, etc., if such assignee used due diligence by the institution and prose- cution of a suit against the maker or his executors, etc., for the recovery of the money or property due thereon and damages ; provided, that if the institution of sucli a suit would have been unavailing, or the maker had absconded or left the State when the instrument fell due, the assignee may recover against the assignor, as if due diligence by suit had been used : 111." 98,7 : Col." 107. Compare § 4036. The assignor, indorser, guarantor, and surety upon any contract, and the drawer of any bill which has been accepted, may be sued without the necessity of previously or at the same time suing the maker, acceptor, or other principal obligor, when he resides beyond the State, or in such part of the same that he cannot be reached by ordinary process of law ; or when his residence is unknown, or cannot be ascertained; or when he is dead, or actually or notoriously insolvent: Tex. 1208. Notes. — " This applies, in the noted states, to suits against persons severally Hable on all written . instruments, negotiable or not. * Protest having been duly made. § 4742. Liability of the Drawer. The rights and obligations of the drawer of a bill of exchance arc the same as those of the first indorser of any other negotiable instrument : Cal. 8177; Dak. Civ. C. 1888 ; Uta. ih. 65. Drawers of indorsed bills are primarily liable to the holders thereof until the same are ac- cepted, after which they are only secondarily liable thereon : Mon. G. L. 102. § 4743. Liability of the Indorser. In Georgia, the gonoral contract of the indorser is to pay the money if the parties to the instrument primarily Uable thereon fail to pay, according OF THE PARTIES. 589 to the terms thereof: Ga. 2730. Hence, if there are several indorsers, each is liable to subse- quent ones in the order of their indorsements : Ga. See Art. 471. So, in North Carolina, the iudorser of a note or negotiable bond is liable as surety to the holder, and no demand on the maker is necessary previous to a suit against the indorser: N.C. 50. One who indorses a negotiable instrument before it is delivered to the payee, is liable to the payee thereon, as an indorser: Cal. 8117; Dak. Civ. C. 1845; Uta. ib. 25. The indorser of a note payable to bearer is held as a guarantor of payment, unless otherwise expressed in the indorsement : 111. 98,8. One who makes himself a party to an instrument intended to be negotiable, but which is left wholly or partly in blank for the purpose of filling afterwards, is liable upon the instrument to an indorsee thereof in due course, in whatever manner and at whatever time it may be filled, so long as it remains negotiable in form : Cal. 8125 ; Dak. Civ. C. 1854 ; Uta. ib. 32. '' In any suit against a remote indorser (of a note only), he has any defence which he might have had as against his immediate assignee : " Ind. 5504. (See $ 4701. note ".) The indorser (or, in Vermont, any surety) upon a promissory note, claim, or demand, whether payable on time or on demand, has the same right to pay the same that the principal has ; and is dis- charged upon tender to the holder at maturity : Vt. 2004 ; so, but after suit brought only : Mon. G. L. 105. The holder must then, upon such tender or payment, surrender the instrument : Vt. 2005 ; Mon. If he refuse, the indorser is discharged from all liabilities, and may recover back from the holder the sum he shall have paid thereon : Vt. In such case, if the instrument be lost, the holder shall execute a written release, stating the amount paid by the indorser : Vt. The indorser of any bill (payable in the State or abroad) who pays to the owner or holder the value of principal, damages, and interest, as duly required (§§ 4752-3), may recover such sum from the drawer or otlier person liable to the indorser upon the bill: Md. 35,2 and 5; Miss. 1125. So, the surety upon any chose in action as against the principal debtor: Miss. So, in Dakota, he has all the rights of a guarantor (Art. 519), and is exonerated from liability in like manner: Dak. Civ. C. 1849. An accommodation indorser has all the rights of a surety (Art. 512), and is exonerated in like manner in respect to every one having notice of the facts, except that he is not entitled to contribution from subsequent indorsers : Dak. Civ. C. 1850. '* Indorsers for the drawers of bills '* are liable as between the parties thereto only for the defeult of the drawers, in the order of their indorsements: Mon. G. L. 102. Execution issues first "against the parties primarily liable" on the note or bill : N.J. Practice, 36. The assignor of a judgment is not, in Georgia, liable as indorser, unless in such assignment he expressly contracts so to be. See in Part IV. and Art. 403. Whenever promissory notes are indorsed for the benefit of the drawer or drawers thereof, and the same is mentioned in the notes, if the drawer or drawers cause the notes to be dis- counted in any bank in the State, or obtain any sum of money upon the notes from any person, the indorsers are bound to the holders as if the notes had been discounted for their own benefit : La. D. 330. Any person indorsing or transferring a negotiable instrument may limit his own liability upon such indorsement or transfer by express restriction: N.C; Ga. 2777; N.M. 1725. As by the words " without recourse : " Cal. 8118 ; Dak. Civ. C. 1846 ; Uta. ib. 26 ; N.M. In such case he is responsible only as in case of a transfer without indorsement : Cal., Dak., Uta. Except as otherwise prescribed by the last section, an indorsement, without recourse, has the same efiect as any other indorsement : Cal. 8119; Dak. Civ. C. 1847; Uta. ib. 27. Note. — « Applies also to non-negotiable instruments. § 4744. Rights of Holder. As a general proposition, a hona-fide holder for value of a bill, note, or other negotiable instrument, who receives the same before it is due, and without notice of any defect or defence, will be protected from any 590 NEGOTIABLE PAPER. defences set up by the maker, acceptor, or indorser: Wis. 2606; lo. 2114,2546; Minn. 66,27; Kan. 80,27; Neb. 2,31; KG. 177; Tex. 265; Cal* 8122,8124; Wash.«' * 15 ; Dak* Civ. C. 1851,1853 ; Ida.* C. Civ. P. 183 ; Uta. ib. 29 and 31 ; Ga. 2785 ; N.M. 1919. But see § 4702. See also § 4031. The same, being part of the law-merchant, would probably be implied in all other states ; see, specially, Ark. 476. See also ^ 4706-4712. As, in detail, (1) want of consideration for the signature of any party : Ind. 366 ; To. ; Cal. ; Dak. ; Uta. ; (2) any defect in the title of the person from whom he acquired it: Cal.,<^ Dak.,<^ Uta. ;'^ (3) any provision of law making it void or voidable : Cal.,'' Dak.,'' Uta.'' But he will not be so protected against the following defences : (1) non est factum : Ga. ; (2) gambling, immoral or illegal considerations : Ga. ; (3) fraud in the procurement of the note by such holder : Ga. An indorsee of a negotiable instrument has the same rights against every prior party thereto that he would have had if the contract had been made directly between them in the first instance: Cal. 8120; Dak. Civ. C. 1848; Uta. ib. 28. The want of consideration for the undertaking of a maker, acceptor, or indorser of a negotiable instrument does not exonerate him from liability thereon to an indorser in good faith for a consideration : Cal. 8122; Dak. Civ. C. 1851 ; Uta. ih. 29. Notes. — " If he is owner of all the interest therein, in the noted states. * Nothing is .said about notice ; but it is probably implied in the words bona fide, or in good faith. " Such holder being " an indorsee in due course " (§ 4712.) § 4745. Holder for Value. Every holder is presumed to be a hona-fide holder, and for value : Ga. 2787. So, the signature of every drawer, acceptor, and indorser is presumed to have been made for value, before maturity, and in the ordinary course of business: Gal. 8104; Dak. Civ. C. 1835 ; Uta. ib. 15. If either fact is negatived by proof, the defendants are let into all their defences : Ga. The presumption is negatived by proof of any fraud in the procurement of the note : Ga. 2787. The holder of a note as collateral security stands upon the same footing as a purchaser for value : Ga. 2788. Any circumstances which would place a prudent man on his guard in pur- chasing negotiable paper are sufficient to constitute notice to a purchaser of such paper : Ga. 2790. Any pajTnent made on the instrument before the assignment to the holder may be set up against him if he had notice thereof: 111. 98,13. § 4746. The Title of the Holder cannot be inquired into unless it is necessary for the protection of the defendant or to let in the defence which he seeks to make : Ga. 2789. Possession of the note or bill is prima fade evidence that the indorsements are genuine: Minn. 73,89 ; Wis. 4193. See also in Part IV. The signature is presumed genuine unless specially denied : Minn." An indorsement of money received on a note appearing to have been made when it was against the interest of the holder i^ prima facie evidence thereof: Minn. 73,90. In actions bi-ought by a corporation or partnership or the indorsors upon a note or bill or other instrument for the payment of money only, executed and delivered by the defendant to such corporation or partnership by the corporate or firm name, the instrument is prima facie evidence of the existence of such cor- poration, or that the persons named are and were partners : Minn. 73,98. Whenever it is necessary in a suit to prove an indorsement or assignment, an affidavit of a competent witness to the same is received as prima facie evidence : Mo. 2315. See, for other states, in Part IV., Evidence. NoTK. — « Unless the maker or drawer be dead. Art. 475. Damages. § 4750. "When Allowed. When a bill '*- * of exchansje drawn, indorsed, or necjo- tiated in the State is regularly (§ 4728) protested for non-acceptance or non-pay- ment,' the person liable thereon (§ 4741) is liable for damages, costs, and interest, DAMAGES. 591 according to this article : Mass. 77,18 and 20 ; Me. 82,42 ; E.I. 142,1-3 ; Ct.^ 18, 1,7 ; N.Y. 2,4,2,18 and 22 ; Pa. Bills, 7; Ind. 5507; 111. 98,1-2 ; Mich. 1584-5 ; Wis. 1682-3 ; lo. 2096; Minn. 13,14-5 ; Kan.«'* 14,14 ; Neb. 41,7 ; Md. 35,1 and 4 ; Del. 63,3 ; Va. 141,9 ; W.Va. 12,9 ; KC. 48; Ky. 22,10 ; Tenn. 2720 ; Mo. 539,540; Ark. 466; Tex. 275 ; Cal. 8234-5 ; Ore. 48,8-9; Nev. 20 and 24; Col. 101-2 ; Wash. 2308 ; Dak. Civ. C. 1924-5 ; Ida. 1874-5, p. 655,12 and 16 ; Uta. ih. 101-2 ; S.C. 1299 ; Ga. 2792 ; Ala. 2106,2110 ; Miss. 1127 ; Fla. 102, 123 ; La. D. 320; N.M. 1728; Ariz. 3475, 3479. It seems that the bill must be drawn within the State, and indorsement there is not sufficient : Md., Tex. And in several, the bill must be drawn for value received : Mo., Ark., Col. It must be payable after date to order or bearer : Ark. Negotiable notes in the hands of the purchasers of the same from the makers by way of discount or investment, if protested for non-payment, shall not be subjected to damages : Mo. 549. No damages except costs of protest are allowed if the bill be paid by the drawer or indorser immediately upon notice of protest and demand : Ind. 5510. Damages are not allowed upon notes discounted by a bank : Ind. 5513. Notes. — " So, in many states, of a note. ^ Or, in others, of a bond. '' In the noted states, for non-payment only. § 4751. To whom Liable. (For citations, see § 4750.) Generally, such dam- aiTes or penalties may be recovered by any holder or owner of the bill : Ct. ; 111. ; Mich. ; Kan. 14,15 ; Md. ; Mo. ; Tex. ; Ga. But in several, only by a holder who purchased it for value : N.Y. ih. 23 ; Ind. 6511 ; Mo. 542 ; Ark. 470 ; Cab ; Nev. 25 ; Dak. ; Ida. ib. 17 ; Uta.; Ariz. 3480. And from any person liable : Wis., Del., Va., W.Va., Tenn. So, probably, in all other states ; see § 4750. From the drawer or indorsers, in case of non-acceptance : Ct., 111., Wis., Kan., Neb., Mo., Col., Ga. And from the acceptor also in case of non-payment : Kan., Mo., Ga. " Such person having due notice of the dishonor of the bill : " 111., Wis., Mo., Col. But this article is not to be construed so as to require notice of non-acceptance or payment in cases where not required to be given at common law : Mo. 541. § 4752. Interest and Costs. The damages provided for in §§ 4753-5 are in full and in lieu of all costs or charges : Mass. 77,18 ; Ct. ; N.Y. ih. 19 and 22 ; Mich. 1584 ; Wis. ; Minn. ; Mo. 544 ; Cal. ; Ore. 48,8 ; Nev. 21 ; Wash. 2309 ; Dak. ; Ida. 1874-5, p. 654, § 13 ; Uta. ; Ala. 2107; La. D. 321 ; Ariz. 3476. But legal interest on the principal sum is allowed from the date of notice of protest in addition to such damages : Mass. ; E.I. ; Ct. ; N.Y. ; Pa. ; Ind. 5508 ; III. ; Mich. ; Wis. ; lo. ; Minn. ; Kan. ; Neb. 1,41,6 ; Md. ; Va. 141,11 ; W.Va. 12, 11 ; N.C." 47 ; Tenn. 2719,2721 ; Tex. 275 ; Cal. 8236 ; Ore. ; Nev. ; Col. ; Wash. ; Dak. Civ. C. 1925 ; Ida. ; Uta ib. 103 ; S.C.« 1298 ; Ga. ; Ala. ; Miss. ; La. ; N.M. ; Ariz. So, interest at ten per cent is allowed : Ky. 22,10 (see § 4753) ; Ark. 468. And if the interest prescribed in the note, bill, or bond is greater or less than the legal rate, such interest is allowed in lieu of the legal rate : Kan. And in many, such interest is also allowed on the damages : Ct., N.Y, Pa., Tenn., Cal., Nev, Wash., Dak., Ida., Uta., Ala., La., Ariz. And in a few, such interest is also allowed on the costs of protest : Pa., Va., W.Va., Tenn. 592 NEGOTIABLE PAPER. And in some, the costs of protest are allowed in addition to damages (and interest) as above : R.I. ; Pa. ; Ind. 5510 ; 111. ; Wis. ; ^ Minn. ;* Md. ; Va. ; W.Va. ; Tenn. ; Ark. ; Col. ; S.C. ; Ga. ; Ala. ; Miss. And also costs of suit : Tex., Miss. Notes. — « Such interest ia, however, always computed from the time of payment mentioned in the note : N.C., S.C. * In the case of bills payable iu another state, but not in a foreign country. § 4753. Damages. The party so liable on a bill drawn or negotiated within the State and duly protested for non-acceptance or non-payment, besides the prin- cipal sum, is liable, in most of the states, for certain specified damages. Thus, (A) if the bill be payable beyond the United States, (1) five per cent on the principal sum : Mass., Mich., Wis., To., Uta., Fla. (2) Ten per cent : R.I., N.Y., Ind., 111., Minn., Va., W.Va., Ark., Ore., Col., Wash., Dak., Ga., Ala., Miss., La. ; (3) fifteen per cent : Md., Cal. ; (4) six per cent : Kan. ; (5) twelve per cent : Neb., N.M. ; (6) twenty per cent : Mo., Nov., Ariz. So, if payable " beyond sea," twenty per cent: Del. (7) Ten per cent interest on the principal sinn from the protest, but not longer than eighteen months unless payment be sooner demanded from the party to be charged, or unless by the contract a rate greater than six per cent is stipulated for ; and damages on all other bills are disallowed : Ky. 22,10. And iu other states, varying rates. Thus, iu Tennessee, fifteen per cent if payable elsewhere in North America or the West Indies ; twenty per cent in the rest of the world. Iu Pennsylvania, twenty per cent if in China, India, Asia, Africa, Pacific Islands ; fifteen per cent if in West Coast of South America; elsewhere iu the world, ten per cent. In North Carolina, if iu North America, except the Northwest Coast, or iu the West Indies and Bahamas, ten per cent ; if iu the other Atlantic isles, Europe, or South America, fifteen per cent ; elsewhere in the world, twenty per cent. In South Carolina, on bills draw'u on North America or the West Indies, twelve and a half per cent ; elsewhere iu the world, fifteen per cent. In Idaho, on bills drawn in any foreign country, except the British Possessions in North America west of the Rocky Mountains, thirty per cent ; if iu such British Possessions, twenty-five per cent. (B) If the bill be payable in another state, (I) five per cent: R.I., Ind., 111.," Wis., Minn., Cal.,= Ore., Wash., Ga., Ala., Miss., Fla., La. (2) Three per cent : lo., Va., W.Va., N.C., Tenn. (3) Ten per cent : Mo., Tex., Cal.,* Col., S.C. (4) Eight per cent : Md, (5) Six per cent : Kan., Neb., N.M. (6) Two and a half per cent : Uta. In other states, there are varying special rates. Thus, in Massachusetts, two per cent (iu Maine, three per cent), if payable in New England or New York; three per cent (in Maine, six per cent), if payable iu N.J., Pa., Md., or Del. ; four per cent (in Maine, six per cent), if payable iu the Virginias, the Carolinas, Georgia, Florida, and the District of Columbia ; and elsewhere in the United States, five per cent (in Maine, nine per cent) : Mass., Me. In Connect- icut, two per cent, if payable in New York City ; three per cent, if iu New England, N.Y., N.J., Pa., Md., Del., Va., or D.C. ; five per cent, if in 0., Ind., 111., Mich., N.C., Ky., S.C, or Ga. ; elsewhere in the United States, eight per cent. In Pennsylvania, five per cent, if pay- jvble anywhere in the United States except California, Oregon, and New Mexico, where it is ten per cent. In New York, if so drawn upon a person iu New England, N.J., Pa., 0., Md., Del., Va., or D.C., three per cent; if upon Ky., N.C., Tenn., S.C, or Ga., five per cent ; if elsewhere in the United States, ten per cent. In Michigan, if payable in N.Y., Pa., 0., Ind., 111., or Wis., three per cent ; if in New England, N.J., Md., Del., Va., Ky., Mo., or D.C, five per cent ; elsewhere iu the U.S., ten per cent. In Iowa, if payable in Cal., Ore., Nev., or any of the territories, five per cent, with interest from the time of protest. In Nevada and Arizona, if drawn upon any person in any of the United States east of the Rocky Moun- tains, fifteen per cent ; so, iu Idaho, twenty-five per cent ; if iu any state west of the Rockies, including Utah and Montana, twenty per cent. In Arkansas, if (Irawn upon Ohio, Indiana, Illinois, Kentucky, Tennessee, Missouri, Alabama, Mississippi, Louisiana, or any point on the Ohio River, four per cent ; elsewhere in the United States, five per cent. In Dakota, if in any state but 111., Wis., lo., Minn., Neb., Mo., and Mou., five per cent; iu those states, three per cent. (C) If the bill be payable in the State (and more than seventy-five miles from the place of drawing or indorsement : Mass.), one per cent damages is allowed : Mass. 77,21 ; Me. ; Uta. STOCKS AND BONDS. 593 If payable in the State, four per cent in all cases: Mo. So, two per cent: Ark., Cal., Dak. So, six percent: N.M. But no damages are allowed as against any person in the State: Kan. ; and so in other states not mentioned above. No damages on account of protest can be recovered on any bond.' bill, or note drawn or made within the State, which shall contain a waiver of protest, or be protested, if it was agreed, understood, or intended by and between the drawer or indorser and the payee or indorsee, at the time of delivei'y, that the same might be paid at any other place than that upon which it was drawn, or by any other person, firui, or company than that upon which it was drawn or by whom it was made : Kan. 14,16. No damages on bills payable in the State can be recovered if the principal, interest, and charges are paid within twenty days after demand or notice : Mo. 543. Notes. — " But such damages are only allowed when suit has to be brought. * East of the Rocky Mountains. <^ West of the Rocky Mountains. § 4754. Exchange. The principal (and in Massachusetts, Rhode Island, Penn- sylvania, the damages) are, in several, payable at the current rate of exchange (1) at the time of demand for payment: Mass.; Pa. ; Mich. ; Wis. 1682; Minn. 23,14 ; Ore. 48,8 ; Ala. ; (2) at the time of the verdict by the jury : Md. 35,4 ; S.C. 1300 ; (o) at the time of payment : Mo. So, in other states, only when the amount of the bill is expressed in such foreign money : N.Y. ib. 21 ; Pa. Bills, 8 ; Mo. 546 ; Cal. 8238 ; Nev. 23 ; Dak. Civ. C. 1927 ; Ida. ib. 15 ; Uta. ib. 105 ; Ala. 2109 ; La. D. 323 ; Ariz. 3478. But in Connecticut, the amount of the bill and damages so payable is determined without reference to the rate of exchange existing at such time of notice and demand ; so, probably, in other states not mentioned above. So, when payable within the United States : Ind. 5509. So, in most of the other states, if the amount be expressed in United States money no exchange is allowed : KY. ib. 20; Mo. 545 ; Cal. 8237; Nev. 22 ; Dak. Civ. C. 1926; Ida. ib. 14; Uta. ib. 104; Ala. 2108; La. D. 322; Ariz. 3477. § 4755. Special Provisions. And in Arkansas, it is further specially provided that if any bill of exchange, expressed to be for value received, payable to order or bearer, is drawn on any person at any place within the State, and accepted and protested for non-payment, there shall be allowed and paid to the holder by the acceptor damages ; viz., two per cent if drawn within the state ; six per cent if drawn without the state but in the United States ; ten per cent if drawn without the United States : Ark. 467. Art. 476. Stocks and Bonds. § 4760. General Principles, etc. For the negotiability, etc., of bonds, see §§ 4031, 4032,4701. § 4761. Stock-jobbing. In two states, every contract, written or oral, for the sale or transfer of stock, shares, bonds, of any state or corporation, or evidences of debt thereof, is void unless the vendor is at the time of making the contract the owner or assignee of such stock, etc., or authorized by such owner, etc., or his agent to sell and transfer the same : Mass. 78,6 ; S.C. 1883,306. But in New York, no such contract is void for such reason, or for want or non-payment of consideration : N.Y. 1858,134. See also in Part V. § 4762. Futures. So, the buying, selling, or dealing in futures in stocks, petroleum, cotton, grain, or anything else whatever, is made a misdemeanor: 0. 1885, p. 254, 6934c; 111. 38,130; Ark. 1848; Miss. 1882,117. And the contract is void : 0., 111., Miss. See also in Part V. So, all contracts to sell or buy produce which the vendor does not own and possess, and which the vendee does not intend actually to receive and pay for, are void : 0. 1885, p. 254; To. 1884,93; Ky. 1884,1613,1 (in Lexington city, only); S.C. 1883,306. 38 594 INTEREST, MONEY, AND USURY. In Wisconsin, no contract for the purchase, sale, transfer, or delivery of personal property to be delivered and paid for at a future day, shall be void when either the buyer or the seller shall in good faith intend to perform the contract (so, in South Carolina also). An intention of either party not to perform such contract shall not vitiate it if the other party shall in good faith intend to perform the same ; no such contract shall be vitiated or held to be void because tlie vendor is not, at the time of making it, the owner of the property contracted to be sold ; and in any action by either party to such contract for the enforcement of the terms, or to re- cover damages for a breach thereof, it shall be incompetent to show in defence, by any extrin- sic evidence, that such contract had any other intent or meaning than expressed or stipulated thereby ; and such contract and all collateral contracts, agreements, or securities growing out thereof, or of which they may have formed the consideration in whole or part, shall be deemed legal and valid to all intents and purposes ; provided nothing herein shall be construed to ex- clude evidence of fraud in the procuring of any contract for the sale and future delivery of personal property, or of any collateral contract or agreement in security growing out thereof, or that any such contract was not entered into upon sufficient consideration, or is not supported thereby, or that both parties intended to make a wagering contract : Wis. 2319a. Art. 477. Letter of Credit. § 4770. Definitions and Geneicil Principles. A letter of credit is a written instrument, addressed by one person to another, requesting the latter to give credit to the person in whose favor it is drawn. A letter of credit may be addressed to several persons in succession. The writer of a letter of credit is, upon the default of the debtor, liable to those who gave credit in compliance with its tenns. A letter of credit is eitlier general or special. When the request for credit in a letter is ad- dressed to specified persons by name or description, the letter is special. All other letters of credit are general. A general letter of credit gives any person to whom it may be shown authority to comply with its request, and by his so doing it becomes, as to him, of the same effect as if addressed to him by name. Several persons may successively give credit upon a general letter. If the parties to a letter of credit appear by its terms to contemplate a course of future deal- ing between the parties, it is not exhausted by giving a credit, even to the amount limited by the letter, which is subsequently reduced or satisfied by payments made by the debtor, but is to be deemed a continuing guaranty. The writer of a letter of credit is liable for credit given upon it without notice to him, unless its terms express or imply the necessity of giving notice. If a letter of credit prescribes the persons by whom, or the mode in which, the credit is to be given, or the term of credit, or limits the amount thereof, the writer is not bound except for transactions which, in tliese respects, conform strictly to the terms of the letter: Cal. 7858- 7866 ; Dak. Civ. C. 1688-1 096. CHAPTER v. — INTEREST, MONEY, AND USURY. Art. 480. Money. § 4800. Note. The hanking and currency laws are not generally incorporated in this edition, as they are regulated by the national laws. See Banking, etc., in Part III. § 4801. Money of Account. The lepjal money of account is, in many states, declared to be the dollar, cent, and mill : N.H. 232,1 ; Mass. 77,1 ; Vt. 1995 ; N.Y. 1,19,3,1 ; N.J. Money,l; Mich. 1592 ; Wis. 1685 ; lo. 2075; Neb. 1,59,1 ; INTEREST. 595 Md. 37,2 ; Va. 137,1 ; W.Va. 136,1 ; N.C. 2491 ; Tenn. 2699 ; Ark. 4730 ; Cal. 3272 ; Nev. 29 ; Ida. 1879, p. 7,1 ; S.C. 1287 ; La. D. 4 ; KM. 1732 ; Ariz. 3448. But this does not invalidate or affect an account, charge, or entry originally made, or a contract expressed, in other money ; but the same shall be reduced to dollars and cents : Mass. 77,2 ; Vt. ; Mich. 1593 ; Wis. 168G ; lo. 2076 ; Neb. ib. 2 ; Va. 137,2-3 ; W.Va. 136,2-3; Cal. 3273; Nev. 30; Ida. ib. 2; N.M. 1733. So, in several, all judgments and verdicts are to be rendered in dollars and cents: N.Y. ib. 2 ; Wis. 1687 ; Tenn. ; Ark. 4731 ; Cal. 3274 ; Nev. 31 ; Ida. ib. 3 ; Ariz. 3449. § 4802. Lawful Money. In many states, no person or corporation unauthorized by law may issue any note, bill, bond, check, ticket, or evidence of debt, or other j'aper security designed to circulate as money. See in Part III., Banking, and Part V., Offences concerning the Currency ; Part III., Toum Warrants, etc. § 4803. Specie Payments. In Nevada, the laws require all salaries, fines, fees, and taxes to be paid in United States gold or silver coin : Nev. 34-5. Art. 481. Interest. § 4810. Definition. Interest is, in some, defined to be the compensation allowed by law or fixed by the parties to a contract for the use or forbearance or detention of money (or its equivalent: Dak., La.) : Tex. 2972; Cal. 6915; Dak. Civ. C. 1095 ; La. 2923. The damages due for delay in the performance of an obligation to pay money are called interest. The creditor is entitled to these damages without proving any loss, and whatever loss he may have suffered he can recover no more : La. 1935. Interest is of two kinds, conventional and legal ; the rate of both is fixed by law in the chapter on loans on interest : La. 1936. In contracts stipulating a conventional interest, it is due without demand, from the time stipulated for its commencement until the principal is paid : La. 1937. Interest is, in Tennessee, defined to be the compensation which may be demanded by the lender from the borrower, or the creditor from the debtor, for the use of money : Tenn. 2700. § 4811. Legal Rate. There is, in all the states, a legal rate of interest allowed when uo rate is specified in the contract : N.H. 232,2 ; Mass. 77,3 ; Me 45,1 ; Vt. 1996 ; RL 141,1 ; Ct. 18,5,1 ; 1877,151 ; NY. 2,4,3,1 ; N.J. Interest, 1 1878,26 ; Pa. Interest, 1 ; 0. 3181 ; Ind. 5198 ; 111. 74,1 ; Mich. 1594 ; Wis. 1688 lo. 2077; Minn. 1879,66,1; Kan. 51,1; Neb. 1,44,2; Md. 36,1; Del. 63,1; Va, 137,4; 1874,122; W.Va. 137,4; N.C. 3835; Ky. 22,15; 60,1,1; 1878, Mar. 2 § 1 ; Tenn. 2701 ; Mo. 2723 ; Ark. 4732 ; Tex. 2973 ; Cal. 6917, Amt. ; Ore. 1880 p. 17 ; Nev. 32 ; Col. 1706 ; Wash. 2368 ; Dak. Civ. C. 1097 ; Ida. 1874-5, p. 647 4 ; Mon. G. L. 728 ; Wy. 63,2 ; Uta. 380 ; S.C. 1288 ; Ga. 2050 ; Ala. 2088 Miss. 1141 ; Fla. 123,1 ; La. D. 1883 ; N.M. 1734 ; Ariz. 3450 ; D.C. 713. Such legal rate is, in most of the states, six per cent : N.H., Mass., Me.,Vt., EL, Ct., N.Y., N.J., Pa., O., Ind., Ill, lo., Md., Del, Va., W.Va., N.C, Tenn., Mo., Ark., Miss., N.M., D.C. In many, seven per cent : Mich., Wis., Minn,, Kan., Neb., Cal., Dak., S.C, Ga. ; in some, eight per cent : Tex. 2976-7 ; Ore. ; Ala. ; Fla. ; in a few, ten per cent : Nev., Col., Wash., Ida., Mon., Uta., Ariz, ; in one, twelve per cent : Wy. ; in Louisiana, five percent: La. 1938,2924; D. 1883. In cases where no conventional interest is stipulated, the legal interest at the time the con- tract was made shall be recovered, although the rate may have been subsequently changed by law : La, 1940. 596 INTEREST, MONEY, AND USURY. § 4812. Contract Rate. (A) In Massachusetts, there are no limits by law to the rate that may be contracted for in writing : Mass. 77,3. So, by the laws of many other states, it is expressly enacted that any rate may be contracted for in writing : Mass. ; Me. ; R.I. ; Cal. 6918 ; Nev. 33 ; Col. 1708 ; Wash." 2369 ; Dak.'' Civ. C. 1098 ; Mon. G. L. 730; Wy. 63,1 ; Fla.« 123,2. (B) So, in the others, any rate not exceeding twelve per cent: Kan. 51,2; Tex. 2974,2978 ; Dak. Civ. C. 1098; N.M. 1734,1737; Ariz. 3451 ; not exceeding ten per cent : Mich. 1594 ; Wis. 1688 ; lo. 2077 ; Minn. ; Neb.« 1,44,1 ; Mo. 2724 ; Ark. 4732-3; Ore." 1880, p. 17 ; S.C. 1882,21 ; Miss.; D.C. 714 ; in others, not exceeding eight per cent : 0. 3179 ; Ind. 5198 ; 111." 74,4 ; Va. ; N.C. ; Ky.'' 60,2,1 ; March 14, 1876 ; Ga. ; La. 2924 ; D. 1884 ; in one, not exceeding eighteen per cent : Ida. ib. 5 ; in other states, no rate exceeding the legal interest (§ 4611) can be contracted for in writing or otherwise : Ct., N.J., Md., W.Va., Pa. This interest is termed conventional interest: Tex. 2974-5. Notes. — "In these states, it does not seem necessary that the contract for such increased rate should be in writing. * Only in loans of money ; and both the consideration and the interest must be set forth in an obligation signed by the party to be charged. <= In the counties of Lawrence, Penning- ton, Custer, Mandan, and Forsythe only. § 4813. Bond Rate. The laws of Massachusetts provide that no corporation shall issue bonds bearing over seven per cent interest : Mass. 77,3. But jn two others, no bond or other security issued by a railway or canal company is invalid because sold under par : N.J. Interest, 6 ; Pa. ib. 6-7. No municipal corporation can issue bonds bearing more than eight per cent interest (see also in Part III.) : Neb. 1,44,10. § 4814. Interest may be paid in Advance. Interest may be taken yearly, or for a shorter period, in. advance : Ind.; Minn. 1879,66,3; Neb. 1,44,1; Dak. Civ. C. 1099. § 4815. Insurance and Taxes. The borrower may contract to pay insurance on the estate mortgaged in addition to legal interest : Ct. ; Pa. Interest, 8. So, to pay taxes on the loan: Ct. ; Pa.; Ore. 1885, p. 125. § 4816. Compound Interest. Interest may not be compounded, nor interest charged upon interest: Wis. 1689 ; Cal. 6920; Nev." 33; Dak. Civ. C. 1101 ; Ida. ib. 6 ; Ariz. 3452 ; unless an agreement to that effect is clearly expressed in writing and signed by the party to be charged therewith : Wis., Ariz. lu the computation of interest upon any bond, note, or other instrument or agreement, in- terest shall not be ccnnpounded ; but any contract to pay interest not usurious upon interest overdue shall not be construed to be usury : Minn. 1879,66,1. The parties may contract in writing for the payment of interest upon interest, the same to be compounded not oftener than once a year : Mo. 2728 ; Cal. 6919. Compare also $ 4855. Interest upon interest cannot be recovered, unless it be added to the prineijial, and by another contract made a new debt. No stipulation to that effect in the original contract is valid: La. 1939. The surety, who is obliged to pay money for his principal, is not bound by the preceding rule respecting interest on interest ; he shall receive interest on the whole sum he has paid, whether for principal or interest from the time of the payment, without any demand : La. 1941. And in Michigan, when any instalment of interest is due upon any bond, mortgage, or written contract, interest may be computed and collected thereon, at the same rate as specified therein, not exceeding the legal rate, or at the legal rate : Mich. 1599. Note. — " The prohibition applies to judgments only. § 4817. Bank Discounts. In Virginia, banks or brokers may discount or loan, for a term not exceeding six months, at the rate of one half per cent a month payable in advance : INTEREST. 597 Va. 137,6-7 ; 1874,122. In Arkansas, a bank may charge ten per cent only on discounts, in- cluding exchange : Ark. 4736. Banks are subject to the usury law like other persons and corporations : Pa. Interest, 3 ; La. D. 1837,1890 ; and their discounts may not exceed the legal contract rate {^ 4812) : La. See in Part III., Banking, and § 4800. Banks established out of the State cannot discount at a higher rate than the law where they are established permits : Miss. 1142. § 4818. Commission Merchants and agents of persons out of the State may contract for seven per cent on advances made on merchandise : Pa. ib. 5. Mortgage-Brokers. No solicitor, scrivener, or broker may, under penalty, take more than one half per cent for brokerage or procuring a loan for one year, and so in proportion, nor more than one fourth per cent for drawing the bill therefor : N.J. Interest 5. § 4819. Other Contracts Specially Exempted from the provisions of this chapter are, in several, the letting of cattle : N.H. 232,5 ; Vt. 2001 ; maritime contracts : ]Sr.H., Vt. ; bottomry : N.H. ; Vt.; N.Y. 2,4,3,5 ; Wis. 1690 ; La. 1942 ; or respondentia bonds: N.Y., Wis., La. ; insurance : N.H. ; the course of exchange : N.H., Vt. Any interest or compensation may be contracted for in writing upon advances not less than $5,000 made upon warehouse receipts, biUs of lading, notes, bills, stocks, and bonds as security : N.Y. 1882,237. § 4820. Foreign Rates. Where it is not specially shown, the rate of interest in other states and countries is presumed to be the same as that established in the State, and may be recovered accordingly, without special allegation: Ky. 60,1,7; Tex. 2261 ; and see Evidence, in Part IV. § 4821. Lex Loci. The usury laws and the interest laws of the State apply to all contracts made within the State, although to be performed abroad : Ind. 5204 ; 111. 74,8; Mich. 1600-1603; Ga. 2053. Unless it is apparent on the face of the contract that the parties intended to refer its execu- tion to another forum (compare § 4203) : Ga. They apply to any contract between citizens and corporations of the State, or between a cit- izen, etc., of the State and a citizen, etc., of a foreign state, wherever payable: 111., Mich. They apply to any contract secured by mortgage or trust-deed of lands in the State : Ind., 111., Mich. But when the maker of a contract is resident in another state, or the mortgage security is there located, the rate legal in such state may lawfully be contracted for and recovered : Ct. 1875,36. § 4822. Lex Fori. And conversely, a contract made out of the State will generally be enforced, though usurious, within it. And a judgment on the debt, or on a judgment in such foreign state, will bear interest according to the terms of the contract: Ky. 60,1,7. But in Indiana, when sucli contract is made abroad, and a mortgage on real estate to secure it made in the State, the land is only liable for the legal contract rate of interest allowed in the State ($ 4812) : Ind. 5204. § 4823. Civil Law of Loan on Interest. It is lawful to stipulate interest for a simple loan, whether of money or other movable things. Interest is either legal or conventional. Legal interest is fixed at the following rates, to wit : — At five per cent on all sums which are the object of a judicial demand, whence this is called judicial interest ; And on sums discounted by banks, at the rate established by their charters. The amount of the conventional interest cannot exceed eight per cent. The same must be fixed in writing ; testimonial proof of it is not admitted in any case. 598 INTEREST, MONEY, AND USURY. Except in the cases herein provided, if any person shall pay on any contract a higher rate of interest than the above, as discount or otherwise, the same may be sued for and recovered within twelve mouths from the time of such payment. The owner or discounter of any note or bond, or other written evidence of debt for the pay- ment of money, payable to order or bearer or by assignment, shall have the right to claim and recover the full amount of such note, bond, or other written evidence of debt, and all interest not beyond eight per cent per annum interest that may accrue thereon, notwithstanding that the rate of interest or discount at which the same may be or may have been discounted has been beyond the rate of eight per cent per annum interest or discount ; but this provision shall not apply to the banking institutions of this state in operation under existing laws. The owner of any promissory note, bond, or other written evidence of debt for the payment of money, to order or bearer or transferable by assignment, shall have the right to collect the whole amount of such promissory note, bond, or other written evidence of debt for the payment of money, notwithstanding such promissory note, bond, or other evidence of debt for the pay- ment of money may include a greater rate of interest or discount than eight per cent per annum ; provided, such obligation shall not bear more than eight per cent per annum after maturity until paid. The release of the principal, without any reserve as to interest, raises the presumption that it also has been paid, and operates a release of it : La. 2923-5. Art. 483. Usury. § 4830. Definitions. Usury is the reserving and taking, or contracting to reserve and take, either directly or by indirection, a greater sum for the use of money than the lawful in- terest (M8] 2) : Ga. 2051. § 4831. Usury Laws, (a) Several states have no usury laws, except that interest above the legal rate must be contracted for in writing (§ 4812). (B) But in most states, no person or corporation may take or receive, directly or indirectly, in money, goods, things in action, or in any other way, a greater sum or value than as prescribed in Art. 481 : Vt. 1996 ; Ct. 18,5 ; 1877,151,3 ; N.Y. 2,4,3,2 ; N.J. 1878,26; 1837,430,6; 111. 74,5; Wis. 1689; lo. 2079; Minn. 1879,66,1; Kan. 51,3; Md. 36,3; Del. 63,1; Va. 137,4; W.Va. 136,4; Mo. 2726; Ark. 4734; Ore. 27,2 ; Ida. 1874-5, p. 647,8 ; S.C. 1288 ; Ga. 2057a; Ala. 2092 ; KM. 1738. The same is, of course, implied in all other states mentioned in § 4812, B. § 4832. Penalty. (A) If a greater rate be charged than as allowed in § 4812, the plaintiff cannot recover the excess over the legal rate in § 4811 : jST.H. 232,4 ; Ct. 18,5,2; Pa. Interest, 2; 0. 3183; Ind. 5201; Mich. 1595; Kan. 51,3; Md. 36,5 ; W.Va. 136,5 ; Ky.'' 60,1,2 ; Tenn. 2707,2710 ; Ga. 20576, c, d. (b) But in many states, the whole interest is forfeited ; and the plaintiff cannot recover any: N.J. Interest, 2; 111. 74,6; Wis. 1690; lo. 2080; Neb. 1,44,5; Va. 137,5 and 8 ; 1874,122 ; N.C. 3836 ; Mo.« 2727 ; Tex. 2979 ; Dak. Civ. C. 1100 ; S.C. 1288 ; Ala. 2092 ; Miss. 1141 ; La. D. 1884; D.C. 715. (C) And in several states, the bond, bill, note, or contract, and all deposits of goods or other securities therewith, is void (except, in Minnesota, Arkansas, Oregon, as to hona-fide purchasers of negotiable paper for value before maturity ; and see § 4745) : N.Y. 2,4,3,5; Minn. 1879,66,-3; Ark. 4732,4735; Ore. 27,3. And all titles to prop- erty made as a part of an usurious contract, or to evade usury laws, are void : Ga. 2057/. (D) And in Oregon, the entire debt is forfeited to the county school fund : Ore. 27,3. Notes. — » Rut in one state, the plaintiff recovers judgment for the interest ; only it is thereupon paid to the county for the use of public schools : Mo. USURY. 599 § 4833. Recovery Back. (A) In several states, if a greater rate than the contract rate (§ 4612) be actually paid, (1) it may be recovered back in a suit by the party pay- ing it: Vt. 2000; KY. 2,4,3,3; V a. Interest, 2; Minn. 1879,66,2; Md. 36,4 ; Va. 137,10; Ky. 60,1,4; Tenn. 2712; Dak. Civ. C. 1100; La. D. 1885,2924. (2) It may be set off as against the principal debt (a) plus the contract rate of interest : Vt. ; Pa. ; 0. 3183 ; Ind. ; Kan. 51,3 ; W.Va. 1882,104 ; {§) without interest : N.J. ; Neb. ; Ala. 2092 ; D.C. 716. (B) In a few, three times the excess over legal interest paid may be so recovered : N.H. 232,3; Wis. 1691 ; Ida. ib. 7 ; so, in two, double the amount of all the interest paid: N.C. 3836 ; N.M. 1737. In Indiana, all the excess over six per cent may be recovered back. And interest paid thereon will be allowed (or may be deducted) from the time of payment : Md. In a bill in equity to recover money, goods, or choses in action, taken or received in viola- tion of the usury laws, it is not necessary for the plaintiff, nor can the court require hiin, to pay any interest whatever on the sum or thing loaned, as a condition of granting relief; nor to de- posit any part of the principal sum ; N.Y. 2,4,3,8; 1837,430,4. Such interest, though paid to an assignee, may nevertheless be recovered back from the lender: Va., Ky. But nothing herein makes usury a cause of action when the obligation has been redeemed or settled by the obligors for a valuable consideration (except a renewal) : Md. 36,6. Such action must, in Pennsylvania, be brought within six months : Pa. ib. 2 ; in others, within a year: N.Y. ; Wis. ; Va. ; Ida.; Ga. 2057e; La.; D.C. ; within three years : N.M. ; within two years: Minn., N.C. Any person charged with usury may generally be required to answer to the same on oath, in civil suits ; see Part IV. One half the interest thus recovered back must be paid to the county : Minn. § 4834. State Suits. In New York, if no suit is brought according to § 4833, the sum specified therein may be recovered by any overseer of the poor of the town or county where the usury was paid, at any time within three years after the expiration of the time Ihnited in % 4832 for suits by the party : N.Y. 2,4,3,4; and see in Parts IV., V. And in Connecticut, any person may sue and recover (I) the excess of interest over the legal rate paid : Ct. 18,5,1 ; Md. 36,4 ; (2) a sum equal to the money lent, one half to the use of the person suing, the other half to the State : Del. 63,1. Such suit must be brought within » year : Ct. See, gen- erally, iu Part V. In many states, usury is also punishable by fine or penalty. And the party has generally his remedy in equity also. See in Part IV. § 4835. Defence of Usury. (See §§ 4830-2.) In several states, no corporation may interpose the defence of usury in any action : N.Y. 1850,172,1 ; 111. 74,11 ; Wis. 1690 ; W.Va. 24,22. See, for other states, in Part III., Corporations. In several, the defence of usury must be made by plea, or a notice in writing must be filed in the cause stating that the defendant means to file such defence. See Part IV. For the defence in the case of notes and bills, see $ 4709. No defence of usury can be made, nor application for a relief upon an usurious contract, unless a tender of the principal sum have been first made : Wis. 1692 ; and see in Part IV. All titles to property made as part of an usurious contract or to evade the usury laws are void : Ga. 2057/ § 4836. Assignees. Nothing in this article, however, prevents the assignee in good faith and without notice of an usurious contract recovering against the usurer the full amount of the consideration paid by him for such contract (less the amount of the principal money) : lo. 2081 ; Ore. 27,4. § 4837. Back Interest. Interest from date, when stipulated, if the debt is not punc- tually paid at maturity, may be recovered, provided interest has not already been included in the principal amount : Ga. 2052. 600 INTEREST, MONEY, AND USURY. Art. 484. Contracts bearing Interest. § 4840. All Judgments and decrees, in most states, bear interest from their date to satisfaction, at the legal rate: Me. 82,34; E.L 216,9; Ct. 19,16,1 ; N.Y. Civ C. 1211 ; Pa. Interest, 9 ; Judgments, 42 ; 0. 3180-1 ; Ind. 5199 ; 111. 74,3; Mich. 1597; lo. 2078; Kan. 51,5; Neb. 1,44,3 ; W.Va. 1882,120,18; N.C. 529 ; Ky.'^ 22,16 ; 60,1,6 ; Tenn. 2705 ; Mo. 2725 ; Ark. 4740 ; Tex. 2980 ; Cal. 6920 ; Ore. 1880, p. 17 ; Nev. 32 ; Col. 1707 ; Wash. 320 ; Dak. Civ. C. 1101 ; Ida.* 1879, p. 7,5 ; Mon. G. L. 729 ; Wy. 63,3 ; S.C. 1289 ; Ga. 2054 ; Ala. 2090 ; Miss. 1143,1958 ; Fla. 123,1 ; KM. 1734 ; Ariz.* 3450 ; D.C. 713,829. See also in Part IV. And if there be interest specified in a contract on which the judgment is founded, the judgment bears interest at that rate (1) in any case (if not above the lawful contract rate : § 4812) : 0. ; Mich. ; lo. ; Kan. 51,6 ; Neb. ; Ky. 22,16 ; Mo.; Ark. 4741; Tex.; Ore. 1880, p. 17; Nev. 33; Wash.; Miss. 1141; N.M. 1735 ; Ariz. 3451. (2) Only if such rate be less than the legal rate : Ind. But after death of the borrower, the rate on a judgment or on the contract, after maturity, is reduced to the legal rate : Ky. 22,17. And the high rate is only allowed on the original sum claimed or due : Nev. The legal rate is always allowed, whatever be the rate in the contract : Mo. ; Fla. 126,3. When a surety satisfies the debt or obligation of the principal, he may recover on the amount so paid such rate of interest as was originally provided for, and his judgment shall bear such interest, not exceeding ten per cent : Ind. 1219. See Art. 512. Notes. — " Except for personal injuries. ^ Only judgments for money lent or due upon account settled. § 4841. Verdicts. (A) In many states, interest is given from the verdict of debt or damages (1) until the judgment is satisfied : R.I. 216,10; Pa. Interest, 10 ; Verdict, 3 ; Ind. 5199; N.C. 530 ; (2) in others, untd the rendition of judgment : N.H. 232,1; N.Y. Civ. C. 1235 ; (3) in others, interest from any award or verdict to the time of en- tering judgment is added to and made a part of the judgment : III. 74,3 ; Mich. 1598 ; for other states, see in Part IV. (B) So, from awards of referees and reports of masters : R.I. § 4842. Interest as Damages. (See also in Part IV.) In many states, legal in- terest may be recovered and allowed in civil actions as damages for the detention of money after it becomes payable : Ct. 18,5,2 ; Mo. 2126. So, in any action founded upon contract: Va. 173,14; W.Va. 157,14; 1882,120. § 4843. Other Contracts. (See also § 4840, for citations.) All bonds bear inter- est from the time when due: 0. 3181 ; 111. 74,2 ; N.C.'' 44 ; Tenn."- "^ 2702 ; Nev. 32 ; Col. 1707 ; Ida. ; Mon. ; Ariz. So, all bills : 0., 111., N.C.,'' Tenn.,"- -^ Nev., Col., Ida., Mon., Ariz. So, notes : 0. ; 111. ; N.C. ; *= Tenn. ; «• " Nev. ; Col. ; Ida. ; Mon. ; Fla. 123,1; Ariz. So, all liquidated and settled accounts: 0.; Ind.*" 5200 ; 111.; lo. ;* Kan.^ 51,1 ; Neb." 1,44,4; N.C. ;"•'' Tenn. ;*'^ Cab;" Ore.;" Cob;" Dak.;" Ida.;" Mon.;" Wy." 63,4; S.C; Ga. 2056; N.M." So, all contracts for the payment of money or loans : 0. ; lo. 2077 ; N.C. ; Mo. ; Tex. 2976 ; Cal 6914; Ore. ; Dak. Civ. C. 1094,1098; S.C; Ala. 2089; Fla.; N.M. ; " other instruments in writing : " 0. ; Ind. ; 111. ; Neb. ; Mo. 2723 ; Cal. ; Nev. ; Col. ; Dak. ; Ida. ; Mon. ; Wy. ; Ariz. TIME AND PAYMENT. 601 Money due or to become due for the forbearance or payment whereof an express promise to pay interest has been made : lo., Kan., Mo., Ore. So, all securities for the delivery of specific articles bear interest as moneyed contracts, the articles to be valued by the jury at the time they become due: N.C. 46; Tenn. 2703,2706; Ala. So, all contracts for the performance of any act or duty, the compensation fur not doing it being estimated iu money : Ala. So, in several, on accounts stated, from the day of presentment or settlement and de- mand : Ind., 111., Mo., Nev., Ga. ; on all open accounts from the January 1st succeeding each cliarge : Tex. 2977. But tradesmen's accounts, and all others which by custom become due from the end of the year, bear interest from that time : Ga. 2057. So, iu many states, on money had and received for the use of another, and retained without the owner's knowledge or consent, from the day when so received : Ind., 111., lo., Kan., Neb., Mo., Cal., Ore., Col., Dak., Mou., Wy., NM. On money lent or advanced for the use of another : 111., Jo., Kan., Neb., Mo., Nev., Col., Mon., Wy. On money withheld by an unreasonable and vexatious delay of payment : 111., Kan., Neb., Col., Mon., Wy. On money due to employees from the end of each month, unless paid within fifteen days thereafter : Kan. On open accounts from the date of the last charge : Col. Unsettled ac- counts bear interest (1) after six months from the date of the last item : lo. ; Neb. ; N.M. 1734, 1736 ; (2) after thirty days therefrom : Wy. All municipal warrants for the payment of money bear legal interest after date of their presentation for paymeut : Neb. 1,44,10; Cob 1709. But state warrants and certificates draw interest at only eight per cent : Col. So, all contracts for rent : Ga. 2288 ; La. 1944 ; and upon annuities : La. The same rule applies to sums due for the restitution of fruits, or for interest paid by a third person in dis- charge of the debtor : La. If the debt be payable on demand, the interest is computed from the day of demand : Teau. 2704 ; Ga. 2056. Suing for the debt is declared equivalent to an actual demand : Tenn. For promissoiy notes payable on demand, see § 4733. Generally, all debts bear legal interest unless otherwise stipulated : La. 1938. Notes. — « When in writing and signed by the party. ^ From the day of settlement. « Unless stipulated in writing that they shall not bear interest. § 4844. On Instalments. In Michigan, when any instalment of interest upon any note, bond, mortgage, or other written contract, is due and unpaid, interest may be collected thereon at the same rate as specified in the instrument for interest on the principal, not exceeding ten per cent ; and if no rate be specified in the instrument, at the legal rate : Mich. 1599. § 4845. After Maturity, when no rate of interest is specified, notes and instruments bear the same rate of interest as before : Minn. 1879,66,5; Kan. 51,6. So, after any breach of the contract: Dak. Civ. C. 1102. The release of the principal, without any reserve as to interest, raises the presumption that it also has been paid, and operates a release of it : La. 2925. Art. 485. Time and Payment. § 4850. Computation of Time. (See also § 1023.) For the purpose of calculating interest, a month is considered the twelfth part of a year, and as equivalent to thirty days : Ct. 18,5,1 ; N.Y. 2,4,3,9; 111. 74,10; 98,16; Ark. 4737; Cal. 6917 ; Dak. Civ. C. 1097. So, for any period less than a year for the purpose of interest : Cal., Dak. The term year means 365 days; half year, 182 days ; quarter, 91 days : Cal. 3257. And interest for any number of days less than a month is estimated iu the propor- tion which such number of days shall bear to thirty : N.Y., 111., Ark. 602 INTEREST, MONEY, AND USURY. Time is computed according to the Gregorian or new style ; and since 1752 the 1st of January is the first day in the year : Cal. 3255 ; N.Y. "Standard time " is adopted by law in a few states: Mich. 1885,5; Wis. 1885, 216. § 4851. " Per Annum." Interest is to be so calculated, whether the words per annum or hy the year he SiMad. or not: N.Y. 2,4,3,10; Ind. 5203; lU. 74,9; Neb. 1,44,9; Ark. 4739; Cal. 6916; Dak. Civ. C 1096; Wy. 63,5. § 4852. Leap Year. The year 1900, 2100, 2200, 2300, or any other future hundredth year of which the year 2000 is the first, except ouly every fourth hundredth year, are not leap years ; and the years 2000, 2400, 2800, and every other fourth hundredth year, and also every fourth year, except as above, which by usage is considered a leap year, is a leap year consist- ing of 366 days : Cal. 3256. The odd day of a leap year is reckoned with the day before it as one day : Cal. 3257. §4853. Day, "Week, etc. A week is seven consecutive days: Cal. 3258. A day lasts from midnight to midnight : Cal. 3259. Day-time is the period between sunrise and sunset; night-time between sunset and sunrise : Cal. 3260. Art. 486. Weights and Measures. § 4860. Citations. See N.H. 121,13,14,16,17 ; 122,3,8,17,19 ; Mass. 60,22,61,67, 73,79; 65,27; 66, 1-2; Me. 38,56-7; 41,1,6-7,11,15-17,19-20; 43,10; 1885,264, 266; Vt. 3707-15; 1884,86; E.I. Ch. 143; 119,4; 126,6; Ct. T. 16, Ch. 15; N.Y. Part 1, T. 2; 1851,134; N.J. Weights, etc.; 1879,48; 1881,109; Pa. Weights, etc.; Grain and Salt; 1885,111; 0.4428-4446; lud. 6553-4 ; 1885,50; 111. Ch. 147; Mich. 1566-1573; Wis. 1665-1670 ; lo. 2045,2049-51; Minn. 21,5-10; Kau. 116,9- II; 1885,126 and 127; Neb. 1,95; 1883,81; Md. 32,16-21; 1882,264; 1884,42; Del. Ch. 66; 67,1; V. 13,154; V. 17,552,553; Va. 88,6 and 8; 1877,90 and 167; W.Va. 200,17; 1882,59; N.C. 3843,3849,3850; 1885,26; Ky. 112,6-8; Tenn. 2685- 6; 2692-3; Mo. 7663,7667; Tex. 1883,74; Cal. 3209-3223; Ore. 62,4; Col. 3470- 2; Wash. 1286; App. p. 9; Dak. 1885,151 ; Pol. C. Ch. 37; Ida. 1883, pp. 64,65; Mon.G. L. 1226-7 ; Ga. 1587a; Ala. 1883,50 ; Miss. 949; La. D. 3925-6; KM. 2931- 2948 ; Ariz. 3607. The weights, measures, etc., connected with the inspection laws of various commodi- ties are not here incorporated. See in Part III. § 4861. The Standards of weights and measures furnished by the United States government are commonly adopted in all the states. The metric system is also, in several states, expressly legalized (see U. S. July 28, 1866, §§ 3569,3570) : Mass., 0., Tenn. Tlie ordinary English measures of length (yard, foot, inch), surveying (mile, chain, rod, link), surfoce (square mile, acre, rood), troy weight (pound, ounce, dram, scruple), avoirdupois weight (ton, hundred-weight, pound, ounce), liquid measure (hogshead, bar- rel, gallon), and dry measure (bushel, peck, quart, pint, gill) are commonly adopted in all the states. In New Mexico, both the United States and the old Spanish standards are used. Of the latter the fanega is 4952J^ cubic inches ; the almud is -^^ of a fanega. The cuartilla equals a pint. § 4862. Special Variations, etc. The avoirdupois pound bears to the troy pound the relation of 7000 to 5760 : N.Y., N.J., Pa., 0., lo.. Neb., Tenn., Cal. The hundred-weight contains 100 avoirdupois pounds, and the ton twenty hundred- weight : N.H., Mass., Me., Vt., Ct., N.Y., Pa., 0.," Ind., 111., Mich., Wis., Ic, Minn., Kan., Neb., Md., Ky., Mo., Cal., Ore., Col., Wash., Mon. WEIGHTS AND MEASURES. 603 So, the " cental " contains 100 lbs. : Mass. But a ton of coal contains 28 bushels: Mon. A bushel of " stone-coal " is comiaouly 80 lbs. The barrel contains 31-^ gallons, and the hogshead 2 barrels : N.Y., 0., lo., Cal. It contains 3:^ bushels : La. The dry gallon contains 282 cubic inches : N.H. ; the liquid gallon contains 8 lbs. of distilled water at its maximum density at the sea level : N.Y. ; the dry-measure gal- lon contains 10 lbs. of the same : N.Y. ; the liquid gallon, 231 cubic inches: N.J., Pa., Ind., Neb., Tenn., Mo. Goods sold by dry measure must be heaped as full as the measure will hold : O., 111., Mich., Wis., Minn., Cal., Ore., Wash. Heap measures must be cylindrical, with plane bottom : N.Y., Cal. • The bushel in heap measure contains 2564 cubic inches : Ct. ; Kan. 2150.42 inches : N.J. ; Pa. ; Neb. ; Tenn. ; Mo. ; Wash. The bushel must be 19^ inches in diameter out- side; the half bushel, 15^; and the peck, 12^ : N.Y., Cal. So, 18i, 13|, lOf, and the half peck 9 inches, respectively ; but all inside: N.H., Minn. The half-bushel is 13|§ in interior diameter, and 7^ inch deep : 0. It contains 1075^ cubic inches : Ind. Note. — " Except of pig-iron and iron ore. § 4863. Particular Commodities. The bushel of wheat contains 60 lbs. : N.H., Mass., Me., Vt., Minn., Kan., Neb., Del., Va., W.Va., NC, Ky., Mo., Tex., Cal., Ore., Col., Wash., Dak., Mon., Ga., La. Of rye, 54 lbs. : Cal. ; 32 lbs. : La. ; 56 lbs. : N.H., Mass., Vt., R.I., Ct., N.Y., N.J., Pa., O., Ind., 111., Mich., Wis., lo., Minn., Kan., Va., W.Va., N.C., Ky., Mo., Tex., Ore., Col., Dak., Mon., Ga. Of Indian corn, 52 lbs. : Cal. ; 58 lbs. : N.Y. ; 56 lbs. : Mass., Me., Vt., R.L, Ct., N.J., Pa., 0., Ind., Ill, Mich., Wis., lo., Minn., Kan., Neb., Del, Va., W.Va., N.C., Ky., Mo., Tex.. Ore., Col., Wash., Dak., Mon., Ga., La. Of barley, 50 lbs. : Cal. ; 32 lbs. : La. ; 48 lbs. : Mass., Me., Vt., R.L, Ct., N.Y., N.J., 0., Ind., 111., Mich., Wis., lo., Minn., Kan., Neb., Va., W.Va., N.C., Mo., Tex., Col., Dak., Mon. ; 47 lbs. : Pa., Ky., Ga. ; 46 lbs. : Ore. ; 45 lbs. : Wash. Of buckwheat, 40 lbs. : Cal. ; 42 lbs. : Minn., Tex., Ore., Wash., Dak. ; 50 lbs. : N.J., 0., Ind., Wis., Kan., N.C. ; 48 lbs. : Mass., Me., Vt., Ct., N.Y., Pa., Mich.; 56 lbs.: Ky. ; 52 lbs. : 111., lo.. Neb., Va., W.Va., Mo., Col., Mon., Ga. Of oats, 32 lbs. : N.H., Mass., Vt., R.I, Ct., N.Y., Pa., 0., Ind., 111., Mich., Wis., lo., Minn., Kan., Neb., Va., W.Va., N.C, Ky., Tenn., Mo., Tex., Cal., Col., Dak., Ga., La. ; 30 lbs. : Me., N.J. ; 26 lbs. : Md. ; 36 lbs. : Ore. ; 35 lbs. : Mon, ; 36 lbs. : Wash. ; Rice corn, 56 lbs. : Kan. Rice, 44 lbs. : N.C. Corn meal, 50 lbs. : N.H., Mass., Me., R.L, Ct., Ind., Mich., Kan., Neb., Va., Ky., Mo., Col., Mon. ; 48 lbs. : 111., Del., N.C, Ga. Rye meal, 50 lbs. : N.H., Mass., Me., R.I., Ct. Pease, 60 lbs. : N.H., Me., Vt., Ct., N.Y., N.J., 0., Mich., Neb., Va., N.C, Ky., Mo., Wash., Dak., Ga. Beans, 60 lbs. : N.H., Me., Ct., N.J., 0., Ind., 111., Mich., Wis., lo., Kan., Neb., Va., W.Va., Ky., Mo., Tex., Col., Wash., Dak., Mon.,Ga. ; 62 lbs. : Vt., N.Y. Potatoes, 60 lbs. : N.H., Mass., Me., Vt., R.I., Ct., N.Y., N.J., 0.. Ind., HI., Mich., Wis., lo., Minn., Kan., Neb., Va., W.Va., N.C, Ky., Mo., Tex., Ore., Col., Wash., Dak., Mon., Ga. ; 56 lbs. : Md. Apples, 44 lbs. : Me. ; 48 lbs. : Mich., lo., Mo. ; 46 lbs. : Vt. ; 50 lbs. : N.J. ; 57 lbs. : Wis. ; 45 lbs. : Ore., Wash. Carrots, 50 lbs. : Me., Vt., Wis., Mo., Mon. ; 55 lbs. : Ct. Onions, 52 lbs.: Mass., Me., Vt., R.L, Dak. ; 48 lbs. : Ind. ; 50 lbs.: Ct., 0., Wis., Wash. ; 57 lbs. : N.J., 111., lo., Kan., Neb., Va., Ky., Mo., Tex., Col., Mon., Ga. ; 54 lbs. : Mich. Ruta-baga, beets, and mangelwurzel, 60 lbs. : Me., Vt., Ct. ; 56 lbs. : Wis. ; 50 lbs. : Mo. English turnips, 50 lbs. : Me., Ct., Wash., Mon. ; 42 lbs. : Wis., Mo. ; 55 lbs. : 111., Kan., Neb., Va., Tex., Ga. ; 58 lbs. : Mich. ; 60 lbs. : Ky., Dak. Clover seed, 60 lbs. : Vt., N.Y., 0., Ind., 111., Mich., Wis., lo., Minn., Kan., Neb., Va., W.Va., N.C, Ky., Mo., Tex., Ore., Col., Dak., Mon., Ga. ; 64 lbs. : N.J, Herdgrass or timothy seed, 45 lbs. : Mass., Vt., 0., Ind., 111., Mich., Wis., lo., Kan., Neb., Va., W.Va,, Ky., Mo., Tex,, Col,, Mon., Ga. ; 44 lbs. : N.Y. ; 42 lbs. : Dak. ; 40 lbs. : Wash. India wheat, 46 lbs. : Vt. Root crops generally, 604 INTEREST, MONEY, AND USURY. 50 lbs. : R.I., Wis., Wash., Mon. Parsnips, 45 lbs. : Ct. ; 44 lbs. : Wis., Mo. ; 55 lbs. : Ind. ; 50 lbs. : Mon. Bran and shorts, 40 quarts to the bushel : N.Y. ; 20 lbs. : 111., lo., Kan., Neb., Ky., Mo., Tex., Dak., Ga. Flaxseed, 55 lbs. : N.Y., N.J., 111., N.C ; 56 lbs! : 0., Mich., Wis., lo., Kan., Va., W^Va., Ky., Mo., Tex., Dak., Mon., Ga. Coarse salt, 70 lbs. : Mass., Me. ; 50 lbs. : Ky., Mo., Tex., Mon. ; 80 lbs. : Col., Dak. Fine salt, 60 lbs. : Me. ; 50 lbs. : Ind., lo., Kan., Xeb., Va., Ky. ; 55 lbs. : 111., Ky. ; 56 lbs. : Mich. Sweet potatoes : 54 lbs. : N.J. ; 46 lbs. : Dak. ; 50 lbs. : 0., Kan., Neb. ; 55 lbs.: Ind., 111., Ky., Tex., Ga. ; 56 lbs. : Mich., Va., Mo.; 46 lbs. : lo. Cotton- seed, 30 lbs. : N.C, Ga. ; 33 lbs. : Mo. ; 32 lbs. : Tex., Ala. The barrel of potatoes weighs 165 lbs. : Me. ; of flour, 196 lbs. : Vt., Ind., Miss. ; of beef or pork, 200 lbs. : Ind. ; 196 lbs. : Miss. Cords of wood must be either 4 feet, 3 feet, or 2 feet long of the wood (N.H., Mass.), including half the kerf, and being well and closely laid together, 8 feet in length, 4 in width, and 4 in height: N.H., Mass., Me., Vt., Va. GENERAL PRINCIPLES. 605 DIVISION II.— ABNORMAL LAW. TITLE I.— CONTRACT RELATIONS. CHAPTER L — DEBTOR AND CREDITOR. Art. 500. General Principles. § 5000. Definitions. A debtor, within the meaning of this title, is one who, by reason of au existing obligation, is or may become liable to pay money to another, whether such lia- bility is certain or contingent. A creditor, within the meaning of this title, is one in whose favor an obligation exists, by reason of which he is, or may become, entitled to the pay- ment of money (Cal., Dak.). So, substantially, in Georgia: Ga. 1944. In the absence of fraud, every contract of a debtor is valid against all his creditors, existing or subsequent, who have not acquired a lieu on the property affected by such contract : Cal. 8429-8430 ; Dak. Civ. C. 2018-20. § 5001. Rights of Debtors. A debtor may prefer one creditor to another, and to that end give bona fide a lien by mortgage or otherwise, or he may sell in payment of the debt, or transfer negotiable papers as collateral security: Cal. 8432; Dak. Civ. C. 2021 ; Ga. 1953. The surplus in sucli cases not being reserved for his own benefit or that of any other favored creditor to the exclusion of other creditors : Ga. § 5002. The Rights of Creditors should be favored by the courts, and every remedy and facility afforded them to detect, defeat, and annul any effort to defraud them of their just rights: Ga. 1945. Creditors may attack as fraudulent a judgment or conveyance or any other aiTangement interfering with their rights, either in law or equity : Ga. 1947. § 5003. Equitable Assets. Where a creditor is entitled to resort to each of several funds for the satisfaction of his claim, and another person has an interest in or is entitled as a creditor to resort to some, but not all of them, the latter may require the former to seek satis- faction from those funds to which the latter has no such claim, so far as it can be done without impairing the right of the former to complete satisfaction, and without doing injustice to third persons:" Cal. 8433; Dak. Civ. C. 2022. Courts of equity should assist creditors in recovering equitable assets in every case where to refuse interference would jeopard the collection of their debts : Ga. 1946- § 5004. Two Remedies. The creditor cannot pursue the person and property of the debtor at the same time, except in cases specially provided for ; but the process last sued out shall be void : Ga. 1948. As among themselves, creditors must so prosecute their own rights as not unnecessarily to jeopard the rights of others ; hence, a creditor having a lien on two funds of the debtor equally acces3il)le to him will be compelled to pursue the one on which other creditors have no lien : Ga. 1949. § 5005. Appropriation of Payments. See $ 4166. § 5006. Fraudulent Removal. If any person removes or aids in removing any debtor out of the county where he has residedfor six months, with the intent of defrauding creditors, such person is liable for all the debtor's debts in such county : N.C. 1551. 606 DEBTOR AND CREDITOR. § 5007, Civil Law of Debtor and Creditor. See, for other states, Insolvency, in Part IV. "What Contracts shall be Avoided by Persons not Parties to them. Contracts, con- sidered with respect to their operation on property, either purport to transfer ownership or to give some determinate right upon it. A sale or exchange is an example of the first, a pledge or mortgage of the second of these species of contracts. There is a third right implied in all obligations, to wit : that the property of the debtor shall be liable for all consequences attend- ing their non-performance ; but this right cannot be exercised, unless the contract be broken, nor until judgment be obtained for the recovery of what is due in consequence of its breach. From the principle established by the last preceding paragraph, it results that every act done by a debtor with the intent of depriving his creditor of the eventual right he has upon the prop- erty of such a debtor, is illegal, and ought, as respects such creditor, to be avoided. This can be done in the mode and under the circumstances set forth in the following rules : La. 1968-9. Of the Action of the Creditors in Avoidance of Contract, and its Incidents. The law gives to every creditor, when there is no cession of goods, as well as to the representatives of all the creditors when there is any such cession, or other proceedings by which they are collectively represented, an action to annul any contract made in fraud of their rights. This action can only be exercised when the debtor has not property sufficient to pay the debt of the complaining creditor, or of all his creditors where there has been a cession, or any pro- ceeding analogous thereto. It cannot be exercised by individual creditors, until their debts are liquidated by a judgment, unless the defendant in such action be made party to the suit fur liquidating the debt brought against the original debtor in the manner hereinafter directed. The defendant in such action may demand a discussion of the property belonging to the original debtor, before any judgment shall be pronounced in the suit to avoid the contract ; and on his pointing out and proving the existence oFsuch property situate within this state, and the title to wliich is not in dispute, the suit against him shall be stayed until such property shall be dismissed, and if the result of this discussion be that the property pointed out is not applica- ble to the payment of the plaintiff, the defendant shall bear all the expenses of the same. If, during the pendency of the action given by this section, the original debtor discharges the debt due to the plaintiff, or acquires the property applicable to its payment and sufficient in amount, such action can no longer be sustained, it being the true intent of the law that a con- tract avoidable by creditors under this section cannot, on that account, be avoided by either of the parties. The plaintiflF in the action given in this section may join the suit for annulling the contract to that wliich he brings against the original debtor for liquidating his debt by a judgment, and in such suit either of the defendants may controvert the demand of the plaintiff. When the defendant in the action given by this section has not been made party to the suit against the original debtor, he may controvert the demand of the plaintiff, although it be liquidated by a judgment, in the same manner that the debtor might have done before the judgment. Tlie judgment in this action, if maintained, shall be that the contract be avoided as to its effects on the complaining creditors, and that all the property or money taken from the original debtor's estate, by virtue thereof, or the value (^f such property to the amount of the debt, be applied to the payment of the plaintiff: La. 1970-7. "What Contracts shall be Avoided by this Action. No contract shall be avoided by this action but such as are made in fraud of creditors, and such as, if carried into execution, would have the effect of defrauding them. If made in good faith, it cannot be annulled, although it prove injurious to the creditors; and although made in bad faith, it cannot be rescinded, unless it operate to their injury. If the contract be onerous, and the original debtor made it with intent to defraud his credi- tors, but the person with whom he contracted was in good faith, the contract cannot be annulled, except under the circumstances and in the manner hereinafter provided. If the contract be purely gratuitous, it shall be presumed to have been made in f>aud of creditors, if, at the time of making it, the debtor had not, over and above the amount of his debts, more than twice the amount of the property passed by such gratuitous contract. GENERAL PRINCIPLES. 607 If the contract he onerous, but made in fraud on the part of the debtor, but in good faith on the part of the person with whom he contracted, if tlie value of the property transferred by such contract exceed by one fifth the price or consideration given for it, the creditors may annul the contract, and take back the property on paying the price or the value of the consideration with interest, but in this case they shall not receive the fruits. If the party with whom the debtor contracted be in fraud as well as the debtor, he shall not, on the annulling the contract, be entitled to a restitution of the price or consideration he may have paid, except for so much as he shall pruve has inured to the benefit of the creditors by adding to the amount of property applicable to the payment of their debts ; but if the only consideration be a sum due from such debtor to the party VA'ith whom he contracted, then the only restitution to be made is the placing the parties in the situation iu which they were before the contract complained of was made. But if such fraud consist merely in the endeavor to obtain a preference over other creditors, for the securing of payment of a just debt, under circumstances in which by law the endeavor to obtain such preference is declared to be a constructive fraud, in such case the party shall only lose the advantage endeavored to be secured by such contract, and shall be reimbursed what he may have given or paid, but without interest; and he shall restore all advantages he has received from the transaction. Every contract shall be deemed to have been made in fraud of creditors, when the obligee knew that the obligor was in insolvent circumstances, and when such contract gives to the obligee, if he be a creditor, any advantage over other creditors of the obligor. By being in insolvent circumstances is meant, that the whole property and credits are not equal in amount, at a fair appraisement, to the debts due by the party. And if he who alleges the insolvency shows the amount of debts, it is incumbent on the other party to show property to an equal or greater amount. To prove the state of his affairs at the period of the contract, the debtor may, at the option of the plaintiff, be examined as a witness in the action for annul- ling the contract. No sale of property, or other contract made -in the usual course of the party's business, nor any payment of a just debt in money, shall be affected by virtue of any provision in this sec- tion, although the party was in insolvent circumstances, and the person with whom he con- tracted, or to whom he made the payment, knew of such insolvency. No contract made between the debtor and one of his creditnce, that his engagement is double, and requires that he should observe the same fidelity towards all parties, and not favor one more than another. Brokers are not responsible for events which arise in the afiairs in which they are employed ; they are only, as other agents, answerable for fraud or faults. Brokers, except in case of fraud, are not answerable for the insolvency of those to whom they procure sales or loans, although they receive a reward for their agency and speak in favor of him who buys or borrows. Commercial and money brokers, besides the obligations which they incur in common with other agents, have their duties prescribed by the laws regulating commerce : La. 3016-3020. § 5266. Of the Obligations of the Principal who acts by his Attorney in Fact. The principal is bound to execute the engagements contracted by the attorney conformably to the power confided to him. For anything further he is not bound, except in so far as he has expressly ratified it. The principal ought to reimburse the expenses and charges which the agent has incun-ed in the execution of the mandate, and pay his commission where one has been stipulated. If there be no fault imputable to the agent, the principal cannot dispense with this reim- bursement and payment, even if the afE;iir has not succeeded ; nor can he reduce the amount of reimbursement under pretence that the charges and expenses ought to have been less. The mandatary has a right to retain out of the property of the principal in his hands a suffi- cient amount to satisfy his expenses and costs. He may even retain, by way of offset, what the principal owes him, provided the debt be liquidated. The attorney must also be compensated for such losses as he has sustained on occasion of the management of his principal's aff^iirs, when he cannot be reproached with imprudence. If the attorney has advauced any sum of money for the affiiirs of the principal, the latter owes the interest of it from the day on which tlie advance is proved to have been made. If the attctrney has been empowered by several persons for an affair common to them, every one of these persons shall be bound in solido to him for all the efiects of the procuration : La. 3021-6. § 5267. How the Procuration Expires. The procuration expires : — By the revocation of the attorney. By the attorney's renunciation of the power. By the change of condition of the principal. By the death, seclusion, interdiction, or failure of the agent or principal. The principal may revoke his power of attorney whenever he thinks proper, and, if neces- sary, compel the agent to deliver up the written instrument containing it, if it be an act under private signature. If the principal only notifies his revocation to tbe attorney, and not to the persons with whom he has empowered the attorney to transact for him, such persons shall always have the right of action against the principal to compel him to execute or ratify what has been done by the attorney ; the principal has, however, a right of action against the attorney. The appointment of a new attorney to transact the same business produces the same effect as a revocation of the first, from the day such appointment is notified to the first attorney. The attorney may renounce his power of attorney by notifying to the principal his renun- ciation. Nevertheless, if this renunciation be prejudicial to the principal, he ought to be indemnified by the agent, unless the latter should be so situated that he cannot continue the agency without considerable injury. MASTER AND SERVANT. 627 If the attorney, being ignorant of the death or of the cessation of the rights of his princi- pal, should continue under his power of attorney, the transactions done by him, during this state of ignorance, are considered as valid. In the cases above enumerated, the engagements of the agent are carried into effect in favor of third persons acting in good faith. In case of the death of the attorney, his heir ought to inform the principal of it, and, in the mean time, attend to what may be requisite for the interest of the principal : La. 3027-3034. Art. 528. Master and Servant. § 5280. General Principles. The contract of employment is a contract by which one who is called the employer engages another, who is called the employee, to do something for the benefit of the employer or of a third person : Cal. 6965 ; Dak. Civ. C. 1128. § 5281. Obligations of the Employer. An employer must indemnify his employee, ex- cept as prescribed in the next section, for all that he necessarily expends or loses in direct consequence of the discharge of his duties as such, or of his obedience to the directions of the employer, even though unlawful, unless the employee at the time of obeying such directions believed them to be unlawful. An employer is not bound to indemnify his employee for losses suffered by the latter in con- sequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employee. An employer must in all cases indemnify his employee fur losses caused by the former's want of ordinary care: Cal. 6969-6971 ; Dak. Civ. C. 1129-1131. § 5282. Obligations of the Employee. One who, without consideration, undertakes to do a service for another, is not bound to perform the same, but if he actually enters upon its performance, he must use at least slight care and diligence therein. One who, by his own special request, induces another to intrust him with the performance of a service, must perform the same fully. In other cases, one who undertakes a gratuitous service may relinquish it at any time. A gratuitous employee who accepts a written power of attorney, must act under it so long as it remains in force, or until he gives notice to his employer that he will not do so. One who, for a good consideration, agrees to serve another, must perform the service, and must use ordinary care and diligence therein so long as he is thus employed. One who is employed at his own request to do that which is more for his own advantage than for that of his employer, must use great care and diligence therein to protect the interest of the latter. A contract to render personal service, other than a contract of apprenticeship, as provided in the chapter on master and servant (Art. 666), cannot be enforced against the employee beyond the term of two years from the commencement of service under it ; but if the employee volun- tarily continues his service under it beyond that time, the contract may be referred to as affording a presumptive measure of the compensation. An employee must substantially comply with all the directions of his employer concerning the service on which he is engaged, except (1) where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee : Cal. 6981 ; Dak. Civ. C. 1138. So, (2) in case of an emergency which, according to the best information which the em- ployee can with reasonable diligence obtain, the employer did not contemplate, in which he cannot with reasonable diligence be consulted, and in which non-compliance is judged by the employee, in good faith and in the exercise of reasonable discretion, to be absolutely necessary f(ir the protection of the employer's interests. In all such cases the employee must conform as nearly to the directions of his employer as may be reasonably practicable and most for the interest of the latter : Dak. Civ. C. 1138. An employee must perform his service in conformity to the usage of the place of perform- ance, unless otherwise directed by his employer, or unless it is impracticable or manifestly injurious to his employer to do so. An employee is bound to exercise a reasonable degree of skill, unless his employer has notice, before employing him, of his want of skill. 528 PRINCIPAL AND AGENT. An employee is always bound to use such skill as he possesses, so far as the same is re- quired, for the service specified. Everything which an employee acquires by virtue of his employment, except the compen- sation if any, which is due to him from his employer, belongs to the latter, whether acquired lawfully or unlawfully, or during or after the expiration of the term of liis employment. An employee must, on demand, render to his employer just accounts of all his transactions in the course of his service as often as may he reasonable, and must, without demand, give prompt notice to his employer of everything which he receives for his account. An employee who receives anything on account of his employer, in any capacity other than that of a mere servant, is not bound to deliver it to him until demanded, and is not at liberty to send it to him from a distance, without demand, in any mode involving greater risk than its retention by the employee himself. An employee who has any business to transact on his own account similar to that intrusted to him by his employer, must always give the latter the preference (Cal. 6988 ; Dak. Civ. C. 1 145. If intrusted with similar afiairs by different employers, he must give them preference according to their relative urgency, or, other things being equal, according to the order in which they were committed to him : Dak.) An employee who is expressly authorized to emph)y a substitute is liable to his principal only for want of ordinary care in his selection. The substitute is directly responsible to the principal. An employee who is guilty of a culpable degree of negligence is liable to his employer for the damage thereby caused to the latter ; and the employer is liable to him, if the service is not gratuitous, for the value of such services only as are properly rendered. Where service is to be rendered by two or more persons jointly, and one of them dies, the survivor must act alone, if the service to be rendered is such as he can rightly perform without the aid of the deceased person, but not otherwise. The obligations peculiar to confidential employments are defined in the title on trusts : Cal. 6975-6992; Dak. Civ. C 1132-1149. § 5233. Termination of Employment. Every employment in which the power of the employee is not coupled with an interest in its subject is terminated by notice to him of, — 1. The death of the employer ; or, 2. His legal incapacity to contract. Every employment is terminated, — 1. By the expiration of its appointed term ; 2. By the extinction of its subject ; 3. By the death of the employee ; or, 4. By his legal incapacity to act as such. An employee, unless the term of his service has expired, or unless he has a right to discon- tinue it at any time without notice, must continue his service after notice of the death or incapacity of his employer, so far as is necessary to protect from serious injury the interests of the employer's successor in interest, until a reasonable time after notice of the facts has been communicated to such successor. The successor must compensate the employee for such ser- vice according to the terms of the contract of employment. An employment having no specified term may be terminated at the will of either party, on notice to the other, except where otherwise provided by this article. An employment, even for a specified term, may be terminated at any time by the employer in case of any wilful breach of duty by the employee in the course of his employment, or in case of his habitual neglect of his duty or continued incapacity to perform it. An employment, even for a specified term, may be terminated by the employee at any time in case of any wilful or permanent breach of the obligations of his employer to him as an employee. An employee dismissed by his employer for good cause is not entitled to any compensation for services rendered since the last day upon which a payment became due to him under the contract. An employee who quits the service of his employer for good cause is entitled to such pro- portion of the compensation which would become due in case of full performance as the services which he has already rendered hear to the services which he was to render as full performance : Cal. 6996-7003; Dak. Civ. C 1150-6. MASTER AND SERVANT. 629 § 5284. Master and Servant. A servant is one who is employed to render personal ser- vice to his employer, otherwise than in the pursuit of an independent calling, and who in such service remains entirely under the control and direction of the latter, who is called his master. A servant is presumed to have been hired for such length of time as the parties adopt for the estimation of wages. A hiring at a yearly rate is presumed to be for one year; a hiring at a daily rate, for one day ; a hiring by piece-work, for no specified term. In the absence of any agreement or custom as to the term of service, the time of payment, or rate or value of wages, a servant is presumed to be hired by the month, at a monthly rate of reasonable wages, to be paid when the service is performed. Where, after the expiration of an agreement respecting the wages and the term of service, the parties continue the relation of master and servant, they are presumed to have renewed the agreement for the same wages and term of service. The entire time of a domestic servant belongs to the master, and the time of other servants to such an extent as is usual in the business in which they serve, not exceeding in any case ten hours in the day. A servant must deliver to his master, as soon as with reasonable diligence he can find him, everything that he receives for his account, without demand ; but he is not bound, without orders from his master, to send anything to him through another person. A master may discharge any servant, other than an apprentice, whether engaged for a fixed term or not : — 1. If he is guilty of misconduct in the course of his service or of gross immorality, though unconnected with the same ; or, 2. If, being employed about the person of the master, or in a confidential position, the master discovers that he has been guilty of misconduct, before or after the commencement of his service, of such a nature that, if the master had known or contemplated it, he would not have so employed him : Cal. 7009-7015 ; Dak. Civ. C. 1157-1163. § 5285. Contracts entered into between master and servant during the term of service are void, except such as are clearly beneficial to the servant: Ky. 74,2,4. § 5286. Contracts with Aliens. (Compare § 6056.) No contract made for labor or services with any alien previous to the time that he came into the territory can be enforced within the territory for any period after six months from its date : Wy. 37,1. Such alien performing services for any person or corporation within the territory may recover from such person, etc., a reasonable compensation for such labor, etc., notwithstanding the person, employer, or company may have paid any other parties for the same ; and it is no defence that the defendant had con- tracted with other parties who had or pretended to have power or authority to hire out the labor of such party plaintiff: Wy. 37,2. So, in Indiana, the im- portation of aliens into the State under contract to labor made previously is unlaw- ful, and the contract void : Ind. 1885, Ex. 51. But in others, all persons who come into the state under contract to serve another are bound to perform tlie same, or for so much of the time as shall not exceed seven years : Ky. 74,2,1. So, not exceeding two years : Va. 4,5 ; Ala. 1750. § 5287. Torts. For the liability of a master for torts committed by his ser- vant, see in Part IV. § 5288. Louisiana Law of Servants. There is only one class of servants in this state, to wit : free servants. Free servants are in general all free persons who let, hire, or engage their services to another in this state, to be employed therein at any work, commerce, or occupation whatever, for the benefit of him who has contracted with them, for a certain price or retribution, or upon certain conditions. There are three kinds of free servants in this state, to wit : — 630 PRINCIPAL AND AGENT. 1. Those who only hire out their services by the day, week, month, or year, in consideration of certain wages ; the rules which fix the extent and limits of those contracts are established in the laws : Of Letting and Hiring. 2. Those who engage to serve for a fixed time for a certain consideration, and who are, therefore, considered not as having hired out but as having sold their services. 3. Apprentices, that is, those who engage to serve any one in order to learn some art, trade, or profession. The regulations, manner, and mode according to which persons may be bound to servo, either as apprentices or otherwise, are prescribed by special laws. The time of the engagement of minors, if there be no stipulation that it shall terminate sooner, shall expire for males when they attain the age of eighteen years, and females whou they attain the age of fifteen. Persons who have attained the age of majority cannot bind themselves for a longer term than five years. Engagements of service contracted in a foreign country for a longer tcrai, shall be reduced to five years, to count from the day of the arrival of the person bound in this state. An implied condition of the contract entered into between the master and bound servant or apprentice, is that the latter binds himself to serve the former during all the time of his engage- ment, and the master on his side binds himself to maintain the indented servant or apprentice during the same time. The master is also bound to instruct the apprentice in his art, trade, or profession, and to teach him or cause him to be taught to read, write, and cipher : La. 162-9. A master may justify an assault in defence of his servant, and a servant in defence of his master, the master because he has an interest in his servant, not to be deprived of his service ; the servant because it is part of his duty for which he receives wages, to stand by and defend his master. The master is answerable for the ofiences and quasi-oQanccs committed by his servants, according to the rules which are explained under Art. 425. The master is answerable for the damage caused to individuals or to the community in general by whatever is thrown out of his house into the street or public road, and inasmuch as the master has the superintendence and police of his house, and is responsible for the faults committed therein : La. 175-7. § 5289. Of the Letting and Hiring of Service. Labor may be let out in three ways : — 1. Laborers may hire their services to another person. 2. Carriers and watermen hire out their services for the conveyance either of persons or of goods and merchandise. 3. Workmen hire out their labor or industry to make buildings or other works : La. 2745. A man can only hire out his services for a certain limited time or for the performance of a certain enterprise. A man is at liberty to dismiss a hired servant attached to his person or family without assigning any reason for so doing. The servant is also free to depart without assigning any cause. Laborers who hire themselves out to serve on plantations or to work in manufactures have not the right of leaving the person who has hired them, nor can they be sent away by the proprie- tor until the time has expired during which they had agreed to serve, unless good and just causes can be assigned. If, without any serious ground of complaint a man should send away a laborer whose ser- vices he has hired for a certain time before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive had the full term of his services arrived. But if, on the other hand, a laborer, after having hired out his services, should leave his em- ployer before the time of his engagement has expired without having any just cause of complaint against his employer, the laborer shall then forfeit all the wages that may be due to him, and shall moreover be compelled to repay all the money he has received, either as due for his wages or in advance thereof on the running year or on the time of his engagement : La. 2746-2750. CREATION. 631 CHAPTER IV. — PARTNERSHIP. Art. 530. Creation. § 5300. Definitions. Partnership is the association of two or more persons, for the pur- pose of carrying on business together, and dividing its profits between them. Part owners of a ship do not, by simply using it in a joint enterprise, become partners as to the ship : Cal. 7395-6 ; Dak. Civ. C. 1404-5. Every partnership that is not formed in accordance with the law concerning special or min- ing partnerships, and every special partnership, so far only as the general partners are con- cerned, is a general partnership: Cal. 7424; Dak. Civ. C. 1419. For joint-stock companies, and partnerships with limited liabQity, see Part III., Corpora- tions. Louisiana Law. Partnership is a synallagmatic and commutative contract made between two or more persons for the mutual participation in the profits which may accrue from property, credit, skill, or industry, furnished in determined proportions by the parties. It may be made by all persons capable of contracting. It is regulated by the rules laid down in the title : Of Contracts, in all things not differently provided for by this title. All partnerships are null and void which are formed for any purpose forbidden by law or good morals. But all the partners in such a partnership are liable in solido to third persons who may contract with them with- out a knowledge of the illegal or immoral object of the partnership. Partnerships must be created by the consent of the parties. A community of property does not of itself create a partnership, however that property may be acquired, whether by purchase, donation, accession, inheritance, or prescription. The community of property created by marriage is not a part- nership ; it is the effect of a contract governed by rules prescribed for that purpose in this code. Property, when brought into partnership or acquired by it, and the profits when they are kept undivided for the benefit of the partnership, are called partnership stock : La. 2801-8. Of the Division of Partnerships. Partnerships are divided, as to their object, into com- mercial partnerships and ordinary partnerships. Commercial partnerships are such as are formed, — 1. For the purchase of any personal property, and the sale thereof, either in the same state or changed by manufacture. 2. For buying or selling any personal property whatever, as factors or brokers. 3. For carrying personal property for hire, in ships or other vessels. Ordinary partnerships are all such as are not commercial ; they are divided into universal and particular partnership's. Commercial partnerships are divided into two kinds, general and special. There is also a species of partnership, which may be incorporated with either of the other kinds, called partnership in commendam : La. 2824-8. A Universal Partnership is a contract by which the parties agree to make a common stock of all the property they respectively possess ; they may extend it to all property, real or personal, or restrict it to personal only ; they may, as in other partnerships, agree that the property itself shall be common stock or that the fruits only shall be such ; but property which may accrue to one of the parties, after entering into the partnership, by donation, succession, or legacy, does not become common stock, and any stipulation to that effect, previous to tlie obtaining the property aforesaid, is void. A universal partnership of profits includes all the gains that may be made from whatever source, whether from property or industry, with the restriction contained in the last article, and subject to all legal stipulations to be made by the parties. If nothing more is agreed between the parties, than that there shall be a universal partner- ship, it shall extend only to the profits of the property each shall possess, and of their credit and industry. If commercial business be carried on under a universal partnership, it must, as to that busi- ness, be governed by the rules prescribed for other commercial partnershijis. Universal partnership shall only be contracted between persons, who are not respectively in- capacitated by law from conveying to or receiving from each other, to the injury of others. 632 PARTNERSHIP. Universal partnership cannot be created without writing signed by the parties, and regis- tered iu the manner hereafter prescribed : La. 2829-2834. Particular partnerships are such as are formed for any business not of a commercial nature. If any part of the stock of this partnership consists of real estate, it must be in writing, and made according to the rules prescribed for the conveyance of real estate, and recorded as is hereafter prescribed with respect to partnership in commendam (§ 5361.) The business of this partnership must be conducted in the name of all the persons con- cerned, unless a firm is adopted by the articles of partnership reduced to writing, and recorded in the manner directed by the last paragraph. If the articles be recorded, the parties may themselves adopt a firm which shall be com- posed of the name of one or more of the partners, but no other name than those of the parties concerned shall enter in such firm : La. 2835-8. § 5301. Formation. A partnership can be formed only by the consent of all the parties thereto, and therefore no new partner can be admitted into a partnership without the consent of every existing member thereof: Cal. 7397; Dak. Civ. C 1406. Any two or more persons may bind themselves for a certain time, and under certain condi- tions, to do business on their common account and risk and at the risk of each one separately, both in losses and profits : N.M. 1799. See also § 5343. A partnership may be created either by written or parol contract, or it may arise from a joint ownership, use, and enjoyment of the profits of undivided property, real or personal : Ga. 1887. A joint interest in the partnership property or a joint interest in the profits and losses of the business constitutes a partnership as to third persons. A common interest in profits alone does not : Ga. 1890. By the laws of Pennsylvania, any person may loan money to any indi- vidual, firm, or corporation, upon agreement to receive a share of the profits in lieu of interest ; and such agreement shall not render him a partner as against creditors, except as to money so loaned : Pa. Partnership, 16. Provided (1) such agreement be in writing : Pa. ; and (2) that he do not hold himself out as a partner or induce credit to be given to the firm : Pa. So, individuals and corporations may give a share of the profits to employees iu lieu of wages, without rendering them partners, either as against creditors or between each other : Pa. ib. 17. So, in North Carolina, no lessor of property, merely by reason that he is to receive as rent or compensation for its use a share of the proceeds or net profits of the business in which it is employed, shall be held as a partner of the lessee : N.C. 1744. Louisiana Law. The contract of partnership may depend upon conditions. When a partnership is made without specifying any time for its commeLcement, it begins at the time the contract is made. If there has been no agreement respecting the time the partnership is to last, it is supposed to have been entered into for the whole time of the life of the partners, under the modifications mentioned in $ 5331, or if the partnership be entered into for some affair the duration of which is limited, for the whole time such afi'air is to last : La. 2853-5. § 5302. Proof of Partnership, when necessary in any suit, may often be made prima fade by the affidavit of any competent witness, stating the names and residence of all the partners, the name of the firm, the general nature of the business and where transacted, and the time of commencement of the partnership ; see in Part IV. When partners sue or are sued by the firm name, the partnership need not generally be proved, unless denied by the defendant upon oath ; see in Part IV. § 5303. Certificate. In two states, every copartnership is required to file with the town clerk (in Pennsylvania, with the prothonotary of the county) a certificate of the names and residences of all the partners, or no suits against them will be abated for non-joinder : N.H. 117,1-2 ; Pa. Partnership, 1-2. Compare § 5343. § 5304. The Partnership Contract. If no time is specified for the commencement of the partnership, it commences immediately: Ga. 1891. If there is no agreement as to the time of continuance, the partnership is at will, and may be dissolved at any time by any part- ner on giving three months' notice to his copartners : Ga. 1893. CREATION. G33 § 5305. Firm Name. In three states, no partner may transact business in the name of a partner not interested in his firm : N.Y." 1833,281 ; Ga." 1897 ; La. D, 2668. Nor continue in the firm name the name of a retired partner : Ga." In two states, where the designation " and Cu.," or " Company," is used it must represent au actual partner or partners: N.Y., La. But the above does not apply to copartnerships located or doing business in other countries : N.Y. 1849,347. Except as otherwise below provided, every partnership transacting business in this state under a fictitious name, or a designation not showing the names of the persons interested as partners in such business, must file with the clerk of the county in which its principal place of business is situated a certificate stating the names in full of all the members of such partnership and their places of residence, and publish the same once a week for four successive weeks in a newspaper published in the county, if there be one, and if there be none in such county, then in a newspaper published in an adjoining county. A commercial or banking partnership established and transacting business in a place with- out the United States may, without filing the certificate or making the publication prescribed in the last section, use in this state the partnership name used by it there, although it be fictitious or does not show the names of the persons interested as partners in such business. The certificate filed with the clerk, as provided above, must be signed by the partners and acknowledged before some officer authorized to take the acknowledgment of conveyances of real property. (Where the partnership is hereafter formed the certificate must be filed, and the publication designated in that section must be made within one month after the formation of the partnership, or within one month frum tlie time designated in the agreement of its mem- bers for the commencement of the partnership; where the partnership has been heretofore formed, the certificate must be filed and the publication made within six months after the pas- sage of this act: Cal.) Persons doiug business as partners contrary to the provisions of this article sliall not maintain any action upon or on account of any contracts made or transactions had in their partnership name in any court of this state until they have first filed the certificate and made the publication herein required. On every change in the members of a partnership transacting business in this state under a fictitious name, or a designation which does not show the names of the persons interested as partners in its business, except in the cases mentioned above, a new certificate must be filed with the county clerk, aud a new publication made, as required by this article, on the forma- tion of such partnership : Cal. 7466-9 ; Dak. Civ. C. 1443-6. Provided, however, that if such partners at any time comply with the above provisions, they may sue on all contracts or partnership transactions, prior or subsequent : Dak. When any copartnership has used any firm name, and the business is continued by any of the partners, they may continue to use the firm name upon filing a new certificate, as in § 5342 : N.Y. 1854,400. Partnerships transacting business under a fictitious name, or a firm not showing the names of the partners, must file with the county recorder a certificate stating the names and residence of all the partners, except a commercial or banking partnership established without the United States, and on every change of members a new certificate must be filed: Ariz. 1885,51. All persons transacting a mercantile, mechanical, or manufacturing business must record their names, or the names of the partners, and their residences, with the county recorder : O. 1884, p. 131. Failure so to do will prevent them from recovering in any suit upon such busi- ness : 0. ib. 3. If any resident of the State dies, who at the period of his death and for five years or more innnediately prior thereto was conducting aud carrying on in his sole name any business in the state, the right to use his name survives and forms a part of his personal estate : N.Y. 1880, 561,1. Any person intending to continue the business under such his name shall file and publish a certificate of the persons so intending and tlieir residences, with the county clerk : N.Y. ih. 2. Note. — " Under penalty, § 5306. Sign. If any person shall transact business as a trader or otherwise, with the addition of the words "agent," "factor," "and Company," or the like words, and 634 PARTNERSHIP. foil to disclose the name of his principal or partner by a sign in letters conspicuously posted ; or if any person shall transact business in his own name without such addition, all the property, stock, money, choses in action, used or acquired in such business, shall, as to creditors of any such person, be liable for his debts : Va. 142,13 ; W.Va. 145,13 ; Miss. 1300. Art. 531. Right of Partners among themselves. § 5310. General Principles. As among partners, the extent of the partnership is de- termined by the contract and their several interests. As to third persons, all are liable not only to the extent of their interest in the partnership property, but also to the whole extent of their separate property : Ga. 1888. Unless otherwise provided in the agreement, partners aro equally interested in all the stock or property brought into the business, it mattere not by which partner ; are equally hound to pay the losses, and equally entitled to share the profits : Ga. 1901. The relations of partners are confidential. They are trustees for each other within the meaning of Chapter I. of the title on trusts, and their obligations as such trustees are defined by that chapter. In all proceedings connected with the formation, conduct, dissolution, and liquidation of a partnership, every partner is bound to act in the highest good faith toward his copartners. He may not obtain any advantage over them in the partnership afi"airs by the slightest misrep- resentation, concealment, threat, or adverse pressure of any kind. Each member of a partnership must account to it for everything that he receives on account thereof, and is entitled to reimbursement therefrom for everything that he properly expends for the benefit thereof, and to be indemnified thereby for all losses and risks which he necessarily incurs on its behalf. A partner is not entitled to any compensation for services rendered by him to the part- nership: Cal. 7410-3; Dak. Civ. C. 1413-6. The copartners must act in good faith, placing punctually in the concern the capital or services as stipulated, under penalty of indemnifying the others for the damages which may arise : N.M. 1800. They must keep their books in due form, with au inventory of stock and capital : N.M. 1802. No partner shall withdraw from the capital or profits, before dissolution, any sums not stipulated in the indenture : N.M. § 5311. Powers. A partnership cannot be executor, curator, or tutor, and cannot ex- ercise any other private office. By private office in this code is meant such trust as relates solely to the interest or affairs of one or more designated individuals, but which cannot be executed without the assent of the magistrate. The nomination of a partnership to any private office is not of itself void ; where it is a trust susceptible of being exercised by more than one person, it shall be considered as a nomi- nation of all the members of the partnership, individually, who belonged to it at the time of such nomination ; where the trust can by law only be exercised by one person, the first-named partner shall he deemed to have been the person intended. A partnership may be appointed attorney or agent for the performance of any act or duty which comes within the object for which the partnership is formed; and the responsibility of such trust or agency attaches to all the members; and they are also entitled to all the advan- tages resulting therefrom, although one of them may execute the trust in the name of tlie partnership, unless it be difierently provided in the appointment. Where a partnership is appointed to perform a trust or agency foreign to the object for which the partnership was formed, the appointment is not void; it may be performed in the name of the partnership if all the partners assent, and then the like responsibili- ties and advantages attach to the parties as are set forth in the last preceding paragraph ; if the assent of all the parties be not given, the trust or agency cannot be performed under the power. If the trust or agency is executed by writing, whether required by law to he so done or not, the assent required by the last paragraph must also be in writing. RIGHT OF PARTNERS AMONG THEMSELVES. 635 In an ordinary partnership, if a partner, having no authority to make purchases for the joint account, shall make any purchase in the name of the partnership or in his own name with the partnership funds, the other partners may elect whether they will take such purchase on the joint account or not : La. 2816-2822. A partner may be a creditor of the pai'tnership not only for the sums which he has dis- bursed, but likewise for the obligations he has entered into bona fide for the partnership, and for losses reasonably incurred in his administration : La. 28G4. The partner intrusted with the administration of the affairs of the partnership by a special power given in writing, either by the articles of partnership or otherwise, may, without the assent of the other partners and contrary to their prohibition, do any act which they have authorized him to do by such power, provided it be without fraud, and in his opinion for the advantage of tlie society. This power, if contained in the arcicles of copartnership, cannot be revoked without a law- ful cause, as long as the partnership lasts. But if the power of administering be given subse- quent to the articles of partnership, it is a simple mandate and may be revoked. When several partners are intrusted with the administration without their duties being pointed out, or when it is not expressed that one shall not be able to act without the other, they may do separately all the acts relating to such administration. If it has been stipulated that one of the administrators shall not do anything without the other, one alone cannot act, even when the other is prevented by sickness or otherwise from taking a part in the acts which relate to the administration, until there be a new agreement between the partners. When there is no agreement respecting administration in the act of partnership, the fol- lowing rules are adhered to : — L The partners are supposed to have given, reciprocally, to each other the power of administering one for the other. What one does is valid, even for the share of his partners, without receiving their approbation, saving the right which they or every one of the partners has to oppose the operation, before it be concluded. 2. Every partner may make use of the things belonging to the partnership, provided he employs the same to the uses for which they are intended, and he does not use them in such a manner as to prevent his partners from using them according to their rights, or against the interest of the partnership. 3. Every partner has a right to bind his partners to contribute with him to the expenses which are necessary for the preservation of the things of the partnership 4. A partner can neither dispose of nor make any change in any real property belonging to the partnership, without the consent of his partners, should even this disposition or change be advantageous to the partnership. 5. In other than commercial partnerships a partner cannot, as partner only and if he has not the administration, alienate or engage the things which belong to the partnership. Every partner may, without the consent of his partners, enter into a partnership with a third person, for the share which he has in the partnership, but he cannot, without the consent of his partners, make him a partner in the original partnership, should he even have the adminis- tration of it. He is responsible for the damages occasioned by this third person to the partnership, in the same manner as he answers for those he bas occasioned himself, according to $ 5312 : La. 2867-2871. A power of attorney to transfer stock standing in the name of a partnership, signed in the name of the partnership, and sealed and acknowledged by one of the members, is valid as if all had signed it : Md. 44,32-3. Every partner has a right to examine into the affairs of the firm, and, unless otherwise agreed to, to have joint possession of its efi"ects, to collect and apply its assets, to contract or otherwise bind the firm in matters connected with its business, and to execute any writing or bond in the course of the business ; at no time transgressing the privileges of other part- ners or seeking in bad faith to evade or violate their wishes : Ga. 1904. Unless otherwise stipulated, a majority of the partners must control on any question within the scope of the partnership business ; but outside of such business, any partner may veto the use of the partnership assets : Ga. 1906. In all legal proceedings, wherein it becomes necessary for p:irtners to give bond, any one of the partners may execute such bond in the firm name : Ga. 1900. 63C PARTNERSHIP. § 5312. Duties. The strictest good faith is required among partners, and that which would not amount to fraud as to third persons may be such a viohition of this faith as to justify a court of equity to compel a partner to give up any advantage thus obtained : Ga. 1903. All profits made by a general partner in the course of any business usually carried on by the partnership belong to the firm. . A general partner, who agrees to give his personal attention to the business of the partner- ship may not engage in any business which gives him an interest adverse to that of the part- nership or which prevents him from giving to such business all the attention which would be advantageous to it. A partner may engage in any separate business, except as otherwise provided above. A general partner transacting business contrary to the provisions of this article may be required by any copartner to account to the partnership for the profits of such business : Cal. 7435-8 ; Dak. Civ. C. 1424-7. Lomsiana Law. A participation in the profits of a partnership carries M'ith it a liability to contribute between the parties to the expenses and losses. But the proportion, like that of the profits, may be regulated by the stipulation of the parties, and where they make none, is provided for by law. A stipulation that one of the contracting parties shall participate in the profits of a partner- ship, but shall not contribute to losses, is void, both as it regards the partners and third persons. But in the case of a partnership in commendam, hereinafter provided f(jr, the liability to loss may be limited to the amount of stock furnished. The foregoing paragraph does not prevent the partners, or any one of them, from making a donation of their or his profits arising from the partnership stock to another, or even from sell- ing the same for a valuable consideration ; but the donee or vendee is not on that account considered as a partner : La. 2813-5. Every partner owes to the partnership all that he has promised to bring into the same. When this proportion consists of a certain thing, and the partnership is evicted from the same, such partner is accountable for it towards the partnership in the same manner as a seller is answerable to the purchaser who buys from him. The partner who promised to bring into the partnership a certain thing is bound, in case of eviction of it, in the same manner as a seller towards the purchaser who buys from him. The partner who promised to put a sum of money into the partnership owes the interest of the same from the day when he was bound to pay such sum. In the same manner he owes the interest on such sums as he may have taken out of the funds of the partnership, from the day he has received them. Any partner who has bound himself to bring into the partnership his skill, industry, or credit, owes the partnership all the profits which he has made by the exercise of such skill, industry, or credit, or of such proportion thereof as he was bound to furnish. When one of the partners is, for his own particular account, creditor of a person who is at the same time indebted unto the partnership for a debt of the same nature which is due like- wise, the partner is bound to apply what he receives from the debtor to the discharge of what is due to the partnership and to him, in the proportion of both debts, although by his receipt he should have applied the whole sum paid to what is due to him in particular. When one of the partners has received his full share of what is due to the partnership, if the debtor has become insolvent since, the partner who has received his full share is bound to return the same to the partnership, although he should have given a receipt for his own share. Every partner is answerable to the partnership for the damages which it may have sufi'ered by his fault, withf)Ut being able to compensate such damages by the profits which his industry, skill, or credit may have produced in the business of the partnership ; provided that no partner shall be held liable for any loss which has happened in consequence of anything bona fide done or omitted by him in the legal exercise of his power, either as administrator or j^artner, although such act or omission should be injudicious and injurious to the partnership. If the use only of certain specified property has been brought into partnership, and that property is of such a nature that it may be used and enjoyed without destroying it, the owner- ship remains in the partner who brought it in, and is at his risk. But if such property be destroyed, or grow worse by keeping or by the use that is made of it, if it was brought into partnership with the intent that it should be sold, or if it was taken at an estimated value ascertained by an inventory or some other writing, — in either of tliese cases, although the use only was contributed, the property is at the risk of the partnership; and incase of loss or RIGHT OF PARTNERS AMONG THEMSELVES. 637 injury, the partner who brought it in is a creditor of the partnership to the amount of the credit or loss ; provided, that all the provisions of this article may be controlled by the cove- nants of the parties : La. 2856-28G3. § 5313. Contribution. If one of several partners proves to be insolvent, each partner is bound to contribute according to his interest to sustain the pro rata loss of such insolvent in the debts of the firm : Ga. 1902. In the absence of any agreement on the subject the shares of partners in the profit or loss of the business are equal, and the share of each in the partnership property is the value of his original contribution, increased or diminished by his share of profit or loss. An agreement to divide the profits of a business implies an agreement for a corresponding division of its losses, unless it is otherwise expressly stipulated. Each member of a partnership may require its property to be applied to the discharge of its debts, and has a lien upon the shares of the other partnei-s for this purpose, and for the pay- ment of the general balance, if any, due to him : Cal. 7403-5; Dak. Civ. C. 1409-141]. § 5314. The Partnership Property. The property of a partnership consists of all that is contributed to tlie common stock at the formation of the partnership, and all that is sub- sequently acquired thereby. The interest of each member of a partnership extends to every portion of its property. Property, whether real or personal, acquired with partnership funds, is presumed to be part- nership property: Cah 7401-2,7406; Dak. Civ. C. 1407-8,1412. Any goods put in as capital by any partner are valued at cash at a fair valuation made by mutual consent : N.M. 1804. If any credits are so put in they are not placed to such partner's credit as capital until in fact collected ; if uncollected the partner must make them good with interest : N.M. 1805. Louisiana Law. Property, credit, skill, and industry being the sources from which the profits of a partnership may be drawn, each of the partners may furnish either or all of these, in such proportions as they may mutually agree. By credit, in the foregoing article, is meant, not only a reputation for responsibility as to pecuniary concerns, but also any quality or other circumstance that may acquire the good will of others, and contribute to the prosperity of the i)artnership : La. 2809-10. The partnership property is liable to the creditors of the partnership in preference to those of the individual partner; but the share of any partner may, in due course of law, be seized and sold to satisfy his individual creditors, subject to the debts of the partnership ; but such seizure, if legal, operates as a dissolution of the partnership : La. 2823. § 5315. The Profits. It is of the essence of this contract that a profit is contemplated, and that each of the parties is to partake therein ; the proportion they are respectively to re- ceive is regulated by the stipulation of the parties, where they make any; where none are made for this purpose, the proportion is regulated by law. It is not necessary, under the last paragraph, that the contract of partnership should provide for the actual partition of the profits. A stipulation that the profits shall be converted into stock for the benefit of all the parties in determined proportions, is valid : La. 2811-2. When the contract of partnership does not determine the share of each partner in the profits or losses, each one shall be entitled to an equal share of the profits, aud must contribute equally to the losses. If the partners have agreed to refer to one of them or to a third person for the regulation of the shares, this regulation cannot be annulled, unless it be by certain proofs that it is con- trary to equity : La. 2865-6. Private Business. Any partner having private means may invest them in his private bu.siness, if he use them in his own name and private signature, so as not to confound them with the partnership business : N.M. 1807. § 5316. Account. An action of account lies by one or more copartners against the others, to settle and adjust partnership affairs: Vt. 1214; Ct. 19,7,5; Pa. Partnership, 10 ; 111. 2,2 ; N.M. 2304. See Part IV. and § .5371. Assumpsit lies, when there only two partners: Ct. All the partners must account for the capital put in, and its profits when used in any business transacted with other persons than the (338 PARTNERSHIP. partners in the name of the partnership : N.M. 180G. The courts ol chancery have general jurisdiction in all partnership affairs : N.M. 1809. See in Part IV. 8 5317. New Partners. No partner, hy assigning his interest or otherwise, can introduce a new partner without the consent of the others, unless such consent is reserved in the contract : Ga. 1905. § 5318. Renunciation. A partner may exonerate himself from all future liability to a third person, on account of the partnership, by renouncing, in good faith, all participation in its future profits, and giving notice to such third person, and to his own copartners, that he has made such renunciation, and that, so far as may be in his power, he dissolves the partner- ship and does not intend to be liable on account thereof for the future. After a partner has given notice of his renunciation of the partnership, he cannot claim any of its subsequent profits, and his copartners may proceed to dissolve the partnership : Cal. 7417-8 ; Dak. Civ. C. 1417-8. Art. 532. Liabilities of the Partners as to Third Persons. § 5320. General Principles. Third persons are bound by no stipulations among the partners themselves, unless actual notice of such stipulation be proven prior to their action : Ga. 1908. All the partners are bound by the acts of any one, within the legitimate business of the partnership, until dissolution or the commencement of legal process for that purpose, or express notice of dissent to the person about to be contracted with : Ga. 1909. An agent of the part- nership is generally bound to obey each partner. If contradictory instructions are given by different partners, he is not bound to obey either, but should act for the best interest of the partnership : Ga. 1910. Third persons acting with a partner in a matter not legitimately con- nected with the partnership have no right against the firm or any other member: Ga. 1911. A person lending money to a partner for the firm is not bound to see to its application, but if he knows, or has reasonable grounds to suspect, that it is intended to be applied to other purposes than the business of the firm, he cannot recover it from the partnership : Ga. 1912. Third persons acquire no title to partnership assets by purchase from one member, when notice or a reasonable ground of suspicion is known to them that the partner is misapplying or seeks to misapply such assets : Ga. 1913. A guaranty or an accommodation indorsement is not within the legitimate business of ordi- nary partnership : Ga. 1914. All the partners are responsible to innocent third persons for damages arising from the fraud of one partner in matters relating to the partnership : Ga. 1915. So, for the negligence of their agents or servants ; but not for a tort committed by a copartner : Ga. 1916. Unless otherwise expressly stipulated, the decision of the majority of the members of a general partnership binds it in the conduct of its business. Every general partner is agent for the partnership in the transaction of its business, and has authority to do whatever is necessary to carry on such business in the ordinary manner, and for this purpose may bind his copartners by an agreement in writing. A partner, as such, has not authority to do any of the following acts, unless his copartners have wholly abandoned the business to him, or are incapable of acting : — 1. To make an assignment of the partnership property or any portion thereof to a creditor, or to a third person in trust for the benefit of a creditor or of all creditors. 2. To dispose of the good will of the business. 3. To dispose of the whole of the partnership property at once, unless it consists entirely of merchandise. 4. To do any act which would make it impossible to carry on the ordinary business of the partnership. 5. To confess a judgment. 6. To submit a partnership claim to arbitration. 7. To do any other act not within the scope of the preceding section. A partner is not bound by any act of a copartner in bad faith toward him, though within the scope of the partner's powers, except in favor of persons who have in good faith parted with value in reliance upon such act : Cal. 7428-7431 ; Dak. Civ. C. 1420-3. DISSOLUTION. 639 Louisiana Law. Ordinary partners are not bound in solido for the debts of the partner- ship, and no one of them can bind liis partners, unless they have given him power so to do, either specially or by the articles of partnership. Commercial partners are bound in solido for the debts of the partnership. In the ordinary partnership, each partner is bound for his share of the partnership debt, calculating such share iu proportion to the number of the partners, vpithout any attention to the proportion of the stock or profits each is entitled to. If a debt be contracted by one of the partners of an ordinary partnership, who is not authtjr- ized, either in his own name or that of the partnership, the other partners will be bound, each for his share, provided it be proved that the partnership was benefited by the transaction. All engagements made relative to the partnership affairs, by the person appointed to admin- ister the business of an ordinary partnership by articles of partnership duly recorded and pur- suant to those powers, shall bind all the partners : La. 2872-5. § 5321. Ostensible and Sleeping Partners. An ostensible partner is one whose name appears to the world as such, and he is bound, though he have no interest in the firm. A dormant or secret partner is one whose connection with the firm is really or professedly con- cealed from the world : Ga. 1889. § 5322. Liabilities. Every general partner is liable to third persons for all the obliga- tions of the partnership, jointly with his copartners. The liability of general partners for each other's acts is defined by the title on agency. Any one permitting himself to be represented as a partner, general or special, is liable, as such, to third persons to whom such representation is communicated, and who, on the faith thereof, give credit to the partnership. No one is liable as a partner who is not such in fact, except as provided above : Cal. 7442- 5; Dak. Civ. C. 1428-1431. The private property of the partners is liable for the debts of the firm when the partnership property proves insufficient : Uta. 377. § 5323. (See, generally, §§ 5015, 4741.) Suits may be brought either (1) against a partnership as such : To. 2553 ; N.M, 1886 ; (2) or against all the individual members thereof : To., N.M. ; (3) or against any or either of them : To., N.M. A new action may be brought against the partners not sued, upon the same cause : To., N.M. § 5324. Assignments. The assignment of any partner in trade made to secure or satisfy a creditor of the firm is valid ; but this does not authorize the assignment of any of the effects of the partnership to satisfy the individual claim of any of the parties, or other than such debts as are incurred for the effects or proceeds thereof thus assigned ; Uta. 378-9, § 5325. Judgments against the firm may generally be enforced against the partner- ship property ; and against the property of such of the members as are parties to the suit. See in Part IV. Art. 533. Dissolution of Partnerships. § 5330. Release of One Partner. (Compare § 501 3.) When any partnership is dissolved, any partner may make a separate composition with one or all of the firm creditors ; and such composition will be a full discharge to the debtors making it, and to them only, of all liabilities to the creditors with whom the same is made, inciuTed by reason of such partner's connection with the firm : E.I. 134,1-2 and 5; N.Y. Civ. C. 1942 ; N.J. 1884,202,1 ; Pa. Partnership, 11 ; 0. 3162 ; Mich. 7783; Kan. 75,1 ; Mon. G. L. 763 ; S.C. 1883,282. Such debtor or debtors shall take from the creditor or creditors a note or memoran- dum exonerating them from all individual liability, which shall be a bar of such cred- itor's right of recovery from them, and a satisfaction, so far as they are concerned, of 640 PARTNERSHIP. any judgment against the firm: R.I. ib. 4; N.Y. ; N.J. ib. 2; Pa. ib. 12; 0. 3163; Mich. 7784; Kan. 75,2; Mon. G. L. 764; S.C. Such composition is not a discharge of the other partners, except for the suras actually so paid, nor does it impair the right of the creditors to proceed against them, in law or equity: R.I. 134,5; Pa. Partnership, 13; 0. 3164; Mich. 7785; Kan. 75,3; S.C. So, in others, a creditor having a debt or demand against a partnership, or against several joint obhgors or promisors, may discharge one or more of such copartners or co- debtors without impairing his right against the others as to the residue of his debt or demand : Vt. 936; Ct. 19,12,1 ; Minn. 66,37; Mo. 666. So, in one state, of several debtors or obhgors : Mo. If an amount exceeding the proportion due from such debtor be paid, it shall be taken as payment of the whole debt pro tanto : R.T. 134,3. This act does not affect the Hability of copartners or joint debtors or obligors as to each other, or to contribution; Minn. 66,40 ; Mo. ; Mon. G. L. 766. The copartners not parties to such compromise are discharged by it from all liability to the creditors beyond their joint ratable proportion, but not otherwise : N.J. ib. 3 ; 0. ; Mich. 7783,7785; Minn. ; Mon. G. L. 765. They may set off any demand against creditors which could have been set off by the whole firm, or avail themselves of any other defence that would otherwise be open to them : R.I. ; Ct. ; N.Y. Civ. C. 1944 ; N.J. ; Pa. ; 0. ; Mich ; Kan. 75,3 ; Mon. ; S.C. ib. 3. Such settlement or compromise in nowise affects the right of the other partners to demand from their copartners making it their ratable proportions of such debt as if this act had not been passed: N.Y. ; N.J. ib. 4; Pa. ib. 14; 0. 3165; Mich. 7786; Minn. 66,38; Kan. 75,4; Mon.; S.C. But in several, the composition so made is considered, in reference to the other part- ners, as an actual payment of such partner's full proportion, wliether in fact so or not : Vt. 937; Pt.L; 0.; Minn. 66,39; S.C. Except that the copartners may call on such partners for any sum to which they are liable, beyond their original proportion, on account of the insolvency, inability to pay, or absconding of any partner: RJ. 134,6. All the provisions of this section apply to the case of joint debtors: Vt. 936 ; E.I. 134,7 ; Ct. ; N.Y. Civ. C. 1942 ; N.J. ib. 5 ; Pa. ib. 15 ; 0. 3166 ; Mich. 7787: Minn.; Kan. 75,5; Mon. G. L. 763,767; S.C; to other joint contractors or obligors ; Vt. § 5331. General Principles. If no term is prescribed by agreement for its duration, a general partnership continues until dissolved by a partner or by operation of law. A general partnership is dissolved as to all the partners, — 1. By lapse of the time prescribed by agreement for its duration : 2. By the expressed will of any partner, if there is no such agreement ; 3. By the death of a partner ; 4. By the transfer to a person, not a partner, of the interest of any partner in the partner- ship property ; 5. By war, or the prohibition of commercial intercourse between the country in which one partner resides and that in which another resides ; or, 6. By a judgment of dissolution : Cal. 7449-7450 ; Dak. Civ. C. 1432-3. It is dissolved, at any time, by the mutual consent of the parties, by the death, insanity, or conviction for felony of one of them, by the marriage of a feme sole partner, by the extinc- tion of the business for which it was formed, or by such misconduct of either party as will justify a court of equity to decree a dissolution : Ga. 1894. Louisiana Law. A partnership ends : — 1. By the expiration of the time for which such partnership was entered into. 2. By the extinction of the thing, or the consummation of the negotiation. 3. By the death of one of the partners, or by his interdiction. 4. By his bankruptcy. DISSOLUTION. 641 5. By the will of all the parties, legally expresseu, or hy the will of any of tliem, founded on a legal cause, and expressed iu the inaniier directed by law. When a partnership has been entered into for a limited time, it ends of course at the expira- tion of that time. The prorogation which may be agreed upon between the parlies shall be made and proved in the same manner as the contract of partnership itself. If a partnership has been entered into, the stock of which is to be formed with the proceeds of a sale, to be made in common, of several things belonging to each partner, and if it happen that the thing belonging to one of them is destroyed, the partnership shall be extinguished. Every partnership ends of right by the death of one of the partners, unless an agreement has been made to the contrary. The death of one partner dissolves the partnership between the surviving partners, unless there be a contrary stipulation. If it has been stipulated that, in case of the death of one of the partners, the partnership should continue between the heir of the deceased and the surviving partners, or between the surviving partners only, either of these stipulations shall be observed. But if the stipulation be, that the partnership shall continue between the survivors only, the heir of the deceased shall be entitled to a division of the partnership property, as it stood at the day of the death of his ancestor, and to a share in the profits of any partnership operation in which his share of the stock was employed, and which was unfinished at that time. The interdiction of one of the partners, or his banlcruptcy, has, as to the dissolution of the partnership, the same efi'ect as the death of one of the partners. If the partnership has been contracted without any limitation of titne, one of the partners may dissolve the partnership by notifying to his partners that he does not intend to remain any longer in the partnership, j^^'ovidecl, nevertheless, the renunciation to the partnership be made bona fide, and it does not take place unseasonably. The renunciation is not bona fide when the partner renounces for the purpose of appropriat- ing to himself the profits which the partners expected to receive from the partnership. The renunciation is made unseasonably, if it be made at the time when things are no longer entire, and when the interest of the partnership requires that its dissolution bo postponed. The common interest of the partnership is considered, and not the interest of the partner who op- poses the renunciation. Although the partnership may have been entered into for a limited time, one of the partners may, provided he has just cause for the same, dissolve the partnership before the time, even where inconveniences might result for the partners, and although it might have been stipulated that the partners could not desist from the partnership before the stipulated time. There is just cause for a partner to dissolve the partnership before the appointed time, when one or more of the partners fail in their obligations, or when an habitual infirmity prevents him from devoting himself to the afl[\iirs of the partnership which require his presence or his per- sonal attendance. The renunciation of the partnership by one of the partners does not operate the dissolution of the partnership, unless it be notified to all the other partners. The rules concerning the partition of successions, the manner of making such partition, and the obligations which result from the same, between heirs, apply to partners : La. 2876- 2890. § 5332. Death of a Partner. On the death of a partner, the surviving partners succeed to all the partnership property, whether real or personal, in trust, for the purposes of liquidation, even though the deceased was appointed by agreement sole liquidator ; and the interest of the deceased in such property passes to those who succeed to his other personal property : Dak. Civ. C. 1442. If the contract specifies the term for which the partnership is formed, it will continue for that time or until the death of one partner. If it is desired to continue, notwithstanding the death of a partner, it must be so specified : Ga. 1892. The surviving partner has the right to control the assets of the firm, to the exclusion of the executors, etc., of the one deceased, and is primarily liable to the creditors of the firm for their debts. But when these are all paid, the assets of the firm may be divided between the surviving partners and the representatives of the one deceased in kind, upon appraisement : Ga. 1907. If during the copartnership any partner die, be absent, or disappear [faltore — por anseneia 41 642 PARTNERSHIP. d otro motivo], the widow and heirs shall abide by what has been done up to that time and, by the contingencies of pending business, according to such partner's interest : N.M. 1803. If the widow and heirs wish to go on with the copartnership, they may either draw up a new agree- ment or submit to the one then existing : N.M. § 5333. Notice. The dissolution of a general partnership by the retiring of an ostensible partner must be made known to creditors and the world (of a dormant partner, to all who had knowledge of his connection with the firm) : Ga. 1895 ; N.M. 1808 ; so, whenever a partner- ship is dissolved, notice must be given by advertisement : Ga., N.M. The liability of a general partner for the acts of his copartners continues, even after a disso- lution of the copartnership, in favor of persons who have had dealings with and given credit to the partnership during its existence, until they have had personal notice of the dissolution ; and in favor of other persons until such dissolution has been advertised in a newspaper pub- lished in every county where the partnership, at the time of its dissolution, had a place of business, if a newspaper is there published, to the extent in either case to which such persons part with value in good faith, and in the belief that such partner is still a member of the firm. A change of the partnership name, which plainly indicates the withdrawal of a partner, is sufficient notice of the fact of such withdrawal to all persons to whom it is communicated ; but a cliange in the name, which does not contain such an indication, is not notice of the with- drawal of any partner : Cal. 1753-4 ; Dak. Civ. C. 1436-7. § 5334. Effect. A dissolution puts an end to all the powers and rights resulting from a partnership to the partners, except for the purpose of a general account and winding up the business. As to third persons, it absolves the partners from all liabilities for future contracts and transactions, but not for those already past : Ga. 1896. After dissolution, a partner has no power to bind the firm by a new contract, or to revive one already for any cause extinct, nor to renew or continue an existing liability, nor to change its dignity or nature : Ga. 1917. When a partnership is insolvent, and one of the partners is deceased insolvent, the creditors of the partnersliip in equal degree with individual creditors cannot claim to share in the indi- vidual assets of the deceased partner until the individual creditors shall have first received upon their debts such a percentage from the individual assets as such partnership creditors liave received from the partnership assets: Ga. 1918. After the dissolution of a partnership, the powers and authority of the partners are such only as are prescribed herein. Any member of a general partnership may act in liquidation of its affairs, except as pro- vided below. If the liquidation of a partnership is committed, by consent of all the partners, to one or more of them, the others have no right to act therein; but their acts are valid in favor of per- sons parting with value, in good faith, upon credit thereof. A partner authorized to act in liquidation may collect, compromise, or release any debts due to the partnership, pay or compromise any claims against it, and dispose of the partnership property. A partner authorized to act in liquidation may indorse, in the name of the firm, promis- sory notes, or other obligations held by the partnership, for the purpose of collecting the same, but he cannot create any new obligation in its name, or revive a debt against the firm, by an acknowledgment when an action therein is barred by limitation (Part IV.) : Cal. 7458-7402 ; Dak. Civ. C. 1438-1442. § 5335. Partial Dissolution. A general partnership may be dissolved, as to himself only, by the expressed will of any partner, notwithstanding his agreement for its continuance, subject however to liability to his copartners for any damage caused to them thereby, unless the circumstances are such as entitle him to a judgment of dissolution : Cal. 7451 \ Dak. Civ. C. 1434. § 5336. Dissolution by Action. A general partner is entitled to a judgment of dis- solution, — 1. When he, or another partner, becomes legally incapable of contracting ; 2. When another partner fails to perform his duties under the agreement of partnership, or is guilty of serious misconduct ; or, * LIMITED PARTNERSHIPS. 643 3. When the business of the partnership can he carried on only at a permanent loss : Cal. 7452 ; Dak. Civ. C. 1435. Art. 534. Limited Partnerships. For partnerships with limited liability, see in Part III. § 5340. Purposes. Limited partnerships may, in the several states, be formed by two or more (in the District of Columbia, the special partners cannot be more than six in number) persons (1) for any mercantile business: N.H. 118,1; Me. 33,1 ; Vt. 3689 ; E.I. 135,1 ; N.Y. 2,4,1,1 ; N.J. Partnership, 1 ; Pa. Limited Part- nership, 1 ; 0. 3141 ; 111. 8 ; Mich. 2341 ; Wis. 1703 ; Minn. 30,1 ; Kan. 74,1 ; Neb. 1,65,1 ; Md. 33,1 ; 1880,482 ; Del. 04,1 ; Va. 142,1 ; W.Va. 145,1 ; N.C. 3088 ; Ky. 82,1 ; Tenn. 2399 ; Mo. 3401 ; Ark. 4822 ; Tex. 3442 ; Ore. 43,1 ; Nev. 468 ; Wash. 2370 ; Mon. G. L. 943 ; Uta. 1884,16,1 ; S.C. 1303 ; Ga. 1920; Ala. 2063 ; Miss. 1005 ; Fla. 159,1 ; D.C. 488-490. (2) For any mechanical business : Me., Vt., Pt.L, N.Y., N.J., Pa., 0., Mich., Wis., Minn., Kan., Neb., Md., Del., Va., W.Va., N.C, Ky., Tenn., Mo., Ark., Tex., Ore., Nev., Wash., Mon., Uta., S.C, Ga., Ala., Fla., D.C (3) For any manufacturing business : Me., Vt, K.I., N.Y., N.J., Pa., 0., Mich., Wis., Minn., Kan., Neb., Md., Del., Va., W.Va., N.C, Ky., Tenn., Mo., Ark., Tex., Ore., Nev., Wash., Mon., Uta., S.C, Ga., Ala., Miss., Fla., D.C (4) For any commercial business : Ark. 4348 ; Ga. ; Miss. ; Fla. (5) For the business of mining : Pa., 0., Ky., Tenn., Mo., Nev., Mon., Uta., Ga. (6) Or of transportation : Mo., S.C. So, of coal only : Pa. So, of navigation : Ark. (7) For any agricultural business: Pa., Ky., Tenn., Mo., Ga., Fla. (8) Or in "any work of improvement:" Miss. (9) For insuring: Ark. (10) For the construction of roads, railways, canals, etc. : Ark. (11) For the banking business : Md. (12) Or for any lawful trade or business: N.H. ; Mass. 75,1; Ct. 18,8,1 ; N.Y. ; Ind. 6033; 111.84,1; lo. 2147 ; Tex.; Cal. 7477 ; Col. 2514 ; Dak. Civ. C. 1449 ; Ida. 1885, p. 148, $ 1 ; Wy. 1878, p. 84, M ; S.C; Ga. Except, limited partnerships may not be formed (1) for carrying on a banking business : N.H., Me , Vt., E.I., Ct., N.Y., N. J., Pa., 0., Mich., Wis., Minn., Kan., Neb., Del., Va., W.Va., N.C, Ky., Tenn., Mo., Ark., Tex., Cal, Nev., Dak, Ida., Mon., Wy., Uta., S.C, Ga., Ala., Fla. (2) Nor for the brokerage business : Va., W.Va., Ky., Mo. (3) Nor for making insurance : N.H., Mass., Me., Vt., Pt.L, Ct., N.Y., N.J., Pa., 0., Ind., Mich., Wis., Minn., Kan., Neb., Md., Del., Va., W.Va., N.C, Ky., Tenn., Mo., Tex., Cal., Nev., Dak., Ida., Mon., Wy., Uta., S.C, Ga., Ala., Fla. (4) Nor for railroad or canal business : Fla. § 5341. Special Partners. Such partnerships consist of one or more (in Washington, two or more) persons, called general partners, who are jointly and severally responsible as general partners now are by law ; and of one or more (in Washington, two or more ; and in Maryland and District of Columbia, the num- ber can never exceed six) persons, who shall contribute capital to the common stock, who shall be called special partners : N.H. 118,2 ; Mass. 75,2 ; Me. 33,1 ; Vt. 3690 ; E.I. 135,2 ; Ct. 18,8,2 ; N.Y. 2,4,1,2 ; N.J. Partnership, 2 ; Pa. Limited Partnership, 2 ; O. 3142 ; Ind. 6034 ; 111. 84,2 ; Mich. 2342 ; Wis. 1704 ; lo. 2148 ; Minn. 30,2 ; Kan. 74,2 ; Neb. 1,65,2 ; Md. 33,2 ; Del. 64,2 ; Va. 142,2 ; W.Va. 145,2 ; N.C. 3089 ; Ky. 82,2 ; Mo. 3402 ; Ark. 4823 ; Tex. 3443 ; Cal. 7478,7500-1 ; Ore. 43,2; Nev. 469 ; Col. 2515; Wash. 2371 ; Dak. Civ. C 1450, 644 PARTNERSHIP. 14G7-8 ; Ida. ih. 2 ; Mon. G. L. 944 ; Wy. 1878, p. 84, § 2 ; Uta. ih. 2 ; S.C. 1304 ; Ga. 1921 ; Ala. 2064 ; Miss. 1006 ; Fla. 159,1 ; D.C. 489. Such capital must be a specific sum, contributed either (1) in actual cash pay- ments (in all states). (2) Or in goods, machinery, or fixtures : Pa. ib. 33 ; Neb. ; Ark. 4847; Col. (3) It may be secured, if unpaid, by mortgage of real estate : Ark. 4849. (4) In real or per- soual property : 111., Mich., Kan., Uta. § 5342. Certificate of Limited Partnership. The persons desirous of forming such a partnership must, in all states below cited, except M'hen otherwise speci- fied, make and severally sign a certificate which shall contain (1) (except in New Mexico) the name or firm under which such partnership is to be conducted. (2) (Except in Connecticut and New Mexico) the general nature of the busi- ness to be conducted (and, in New Hampshire, Virginia, Kentucky, Missouri, Colorado, the place where it is to be carried on). (3) The names, christian and surname, and places of residence, of all the gen- eral and special partners interested therein, distinguishing (in all except Oregon, Washington, Idaho, New Mexico) which are general and which special (and also, in Connecticut, Florida, distinguishing which of the general partners are author- ized to transact partnership business and sign the firm name). (4) The amount of capital which each special partner shall have contributed to the common stock " (and in Missouri, the amount he shall have agreed so to contribute yet unpaid). (5) The periods at which the partnership is to commence and terminate. (6) In Missouri and New Mexico, the amount of means each special partner may annually withdraw for his individual use from the partnership. (7) The administration or branches in which each one shall act, in New Mexico. (8) The manner in which they shall divide profits or losses, in New Mexico. (9) The obligation that the partners will submit, under a conven- tional penalty, to the adjudication of arbitrators without appeal, in New Mexico. (10) Such other conditions as may be desired, in New Mexico. (11) The terms upon which the partner- ship may be dissolved, and that the death of a partner shall not cause dissolution, in Illinois N.H. 118,3; xMass. 75,4 ; Me. 33,2; Vt. 3691 ; R.I. 135,3; Ct. 18,8,4; N.Y. 2,4,1,4 : N.J Partnership, 4; Pa. Limited Partnership, 4 ; 0. 3143; Ind. 6035; 111. 84,4 ; Mich. 2344 Wis. 1705 ; lo. 2150 ; Minn. 30,4 ; Kan. 74,4 ; Neb. 1,65,4 ; Md. 33,3 ; Del. 64,3 ; Va. 142 3; W.Va. 145,3; N.C. 3090 ; Ky. 82,3; Tenn. 2401 ; Mo. 3403 ; Ark. 4825 ; Tex. 3445 Cal. 7479 ; Ore. 43,3; Nev. 470 ; Col. 2517 ; Wash. 2372; Dak. Civ. C. 1451 ; Ida. ih. 3 Mon. G. L. 945 ; Wy. 1878, p. 84, $ 3 ; Uta. ih. 4 ; S.C. 1306 ; Ga. 1923; Ala. 2066 ; Miss. 1007 ; Fla. 159,1-2 ; N.]\I.» 1801 ; D.C. 492. Such certificate may be signed by power of attorney, which must be duly recorded with it (§ 5345) : Ga. Notes. — " And in Florida, "the nature of such capital, whether in cash, merchandise, or busi- ness experience and skill." * This contract or certificate is required in all partnerships, general or limited, iu New Mexico. § 5343. Acknowledgment and Proof. In most states, the several persons signing this certificate must acknowledge it (or their signatures may be proved as in the case of a deed) before (1) the same persons authorized to take the acknowl- edgment or proof of deeds of land : Mass. 75,5 ; Ct. 18,8,4 ; N.Y. 1837,129 ; N.J. Partnership, 5 ; Pa. Limited Partnership, 5 ; 0. 3144 ; 111. 84,5 ; Mich. 2345 ; Wis. 1706 ; lo. 2151 ; Minn. 30,5 ; Kan. 74,5 ; Neb. 1,65,5 ; Md. 33,4 ; 1884,66 ; Ky. 82,4 ; Tenn. 2402 ; Mo. 3404 ; Tex. 3446 ; Cal. 7480 ; Ore. 43,3 ; Nev. 471 ; Col. 2518 ; Wash. 2372 ; Dak. Civ. C. 1452 ; Ida. ih.4.; Mon. G. L. 946 ; Wy. ih. 4; Uta. ib. 5 ; S.C. 1307 ; Miss. 1008 ; Fla. 159,3. LIMITED PARTNERSHIPS. 645 (2) Or before any justice of the peace : N H. 118,4 ; Me. 33,3 ; Vt. 3fi92 ; R.I. 135,4 ; Ind. 6036; Md. 33,4; Del. 64,3; Ark. 4826; Ga. 1924. (3) Or a notary public: R.I. ; Neb.; Uta. ; Ga. ; D.C. 493. (4) Or a judge : Md. ; N.C. 3U9J ; Ark. ; Ga. ; Ala. 2067 ; D.C. (5) Or clerk of court : N.C, Ky. (6) Before any court of record : N.M. 1801. (7) Before any chancellor or judge of the supreme, circuit, or county courts: N.Y. 2,4,1,5. This acknowledgment or proof is, generally, to be made in the same manner (1) as iu the case of a deed conveying real estate : KY., N. J., Pa., 111., Mich., Minn., Kan., Neb., Md., Ky., Tenn., Mo., Ark., Tex., Col., Uta., S.C, Miss., Fla., D.C. Or, in two, as in the case of a power of attorney : Va. 142,4 ; W.Va. 145,4. It must be proved by two witnesses : Fla. § 5344. Record. The certificate so made is required to be recorded (1) in the land record office of the county (or town) wherein is situated the chief place of business of the partnership : N.H. 118,4 ; Me. 33,3 ; Pa. Limited Partnership, 6; 0. 3145 ; Ind. 6036 ; Minn. 30,6 ; Del. 64,3 ; N.C. 3092 ; Tenu. 2402 ; Mo. 3404; Cal. 7480 ; Nev. 471 ; Dak. Civ. C. 1452 ; Ida. ih. 4 ; Mon. ; Wy. ; Uta. ih. 6. (2) In the office of the county clerk (or, in Vermont, Ehode Island, Connecticut, the town clerk) in such county or town : Vt. 3692 ; R.I. 135,4 ; Ct. 18,8,4 ; N.Y. 2,4,1,6 ; N.J. Partnership, 6 ; 111. 84,6 ; Mich. 2346 ; Kan. 74,6 ; Neb. 1,65, 6 ; Va. 142,4 ; W.Va. 145,4 ; 1883,5 ; Ky. 82,4 ; Tex. 3447 ; Ore. 43,3 ; Col. 2519 ; Wash. 2372-3 ; Wy. ; S.C. 1308 ; Ga. 1925. (3) In the office of the clerk of the superior court for the county : Wis. 1706 ; lo. 2152 ; Md. 33,4; Ark. 4827 ; Fla. 159,4. (4) With the secretary of state : Mass. 75,5. (5) With the judge of probate : Ala. 2068. (3) With the chancery clerk : Miss. 1008 ; (7) With the clerk of the supreme court : D.C. 41)3. The record is made in books kept open to public inspection : N.H., Mass., Me., Vt., N.Y., N.J., Pa., 0., Ind., 111., Mich., lo., Minn., Kan., Md., Tenn., Ark., Tex., Nev., Col., Ida., Mon., Wy., S.C, Ga., Ala., Miss., Fla., D.C. If the partnership has places of business in different counties (or towms), rec- ord of the certificate, or a copy, must be made in like manner in every such county (or town) : Me. ; Vt. ; R.I. ; Ct. ; N.Y. ; N.J. ; Pa. ; 0. ; Ind. ; 111. ; Mich. 2347 ; Wis. ; lo. ; Minn. ; Kan. 74.7 ; Neb. ; Md. ; Del. ; Va. ; W.Va. ; N.C. ; Ky. ; Tenn. 2403 ; Mo. ; Ark. 4828 ; Tex. ; Cal. ; Nev. ; Col. ; Dak. ; Ida. ; Wy. ; Uta. ; S.C. ; Ga. ; Ala. ; Miss. ; Fla. § 5345. Publication. A copy of such certificate, or the essential facts con- tained therein, must then be published (1) by advertisement iu a newspaper : N.H. 118,4 ; Mass. 75,6 ; Me. 33,5 ; Vt. 3693 ; R.I. 135,5 ; Ct. 18,8,6 ; N.Y. 2,4,1,9 ; N.J. Partnership, 9 ; Pa. Limited Partnership, 9-10 ; 0. 3146 ; Ind. 6037 ; 111. 84, 9 ; Mich. 2350 ; Wis. 1709 ; lo. 2155 ; 1882, Ch. 8 ; Minn. 30,9 ; Kan. 74,10 ; Neb. 1,65,9 ; Md. 33,7 ; Del. 64,3 ; Va. 142,4; W.Va. 145,4 ; N.C. 3096 ; Ky. 82,4; Tenn. 2407 ; Mo. 3404 ; Ark. 4831 ; Tex. 3450 ; Cal. 7483 ; Ore. 43,4 ; Nev. 472 ; Col. 2522 ; Wash. 2373 ; Dak. Civ. C. 1455 ; Ida. ib. 7 ; Wy. ib. 7 ; Uta. ib. 9 , S.C. 1311 ; Ga. 1928 ; Ala. 2072; Miss. 1011 ; Fla. 159,8 ; D.C. 497. (2) By posting, vi'hen no paper is published in the county where the principal place of busi- ness is situated : Md., S.C. In a few states, this publication must be made in two newspapers : R.I., N.Y., Pa., Mich., Wis., lo., Neb., Md., Ga., Ala. Such publication or otiier notice must, generally, be made immediately after filing the certificate for record : N.H., Mass., Vt., R.I., N.Y., N.J., Pa., 0., Ind., 111., Mich., Wis., To., Minn., Kan., Neb., Md., Va., N.C, Tenn., Ark., Tex., Ore., Nev., Col., Wash., Wy., Uta., S.C, Ala., Miss., Fla., D.C. ; within two months thereafter : Ga. ; twenty days : Me, ; one month : Ida. 646 PARTNERSHIP. The newspaper or newspapers must be published in the county, city, or district where the principal place of business of the partnership is to be : Mass., Me., Vt., Ct., N.Y., N.J., Pa., 0., Ind., 111., Mich., Wis., lo., Minn., Kan., Neb., Md., Va., W.Va., N.C., Ky., Mo., Cal., Ore., Nev., Col., Wash., Dak., Ida., Wy., Uta., S.C, Ga., Miss., Fla. But in many states, the paper is designated by the clerk or recorder : Pa., Mich., Wis., lo.. Neb., Md., Tenn., Ark., Tex., Uta., Ala., D.C. If no paper is published in such county, then in a paper published in some adjoining county : Me., Vt., N. J., 0., Ind., 111., Ky., Mo., Cal., Nev., Col., Dak., Ida., Wy., Uta., S.C, Miss., Fla. Or in the same judicial district : Neb. ; or in the paper in which the sheriflF advertises : Ga. ; or in some paper published in the principal city or capital of the State : Mass., Minn. ; or in the state paper : Me. ; or some paper designated by the clerk : Md. But in two states, publication may be made in any paper published in the State : R.I., Del. ; " having general circulation in the county : " Ore., Wash. If the firm has places of business in more than one county, publication must be made in each of such counties : 0., Md., Va., W.Va., Ky., Mo. Such publication must be made once a week (1) for six successive weeks : Mass., Me., Vt., R.I., Ct., KY., N.J., Pa., 0., Ind., 111., Mich., Wis., lo., Minn., Neb., Md., Del, Va., W.Va., KC, Tenn., Ark., Tex., S.C, Ga., Ala., Fla. ; (2) for three successive weeks : N.H., Nev. ; (3) for four successive weeks : Kan., Ky., Mo., Cal, Ore., Col., Wash., Dak., Ida., Wy., Uta., D.C. ; (4) for three months : Miss. Failure to publish, as herein required, in most of the states, renders the partner- ship general, as in § 5347 : Me. ; Vt. ; E.I. ; N.Y. ; N.J. ; Pa. ; O. ; Ind. ; III, Mich. ; Wis. ; lo. ; Minn. ; Kan. ; Neb. ; ]\Id. ; Del. ; Va. ; N.C ; Ky. ; Tenn. ; Mo. ; Ark. ; Tex. ; Cal. ; Ore. ; Nev. ; Col. ; Wash. ; Dak. ; Ida. ; Wy. ; Uta. ; S.C ; Ga. ; Ala. ; Miss. ; D.C 498. § 5346. Affidavit. At the time of recording the certificate, there must also, in most of the states, be recorded an affidavit, made and signed by one or more of the general partners (or, in Connecticut, Arkansas, Texas, Idaho, Wyoming, all of them), stating that the sums specified in the certificate to have been con- tributed by each of the general partners have been actually and in good faith paid in cash (or its equivalent, as provided in § 5341): N.H. 118,5; Ct. 18,8,4; N.Y. 2,4,1,7 ; N.J. Partnership, 7 ; Pa. Limited Partnership, 7 ; 111. 84,7 ; Mich. 2348; Wis, 1707; lo. 2153; Minn. 30,7 ; Kan. 74,8 ; Neb. 1,65,7 ; Md. 33,5 ; Va. 142,3 ; W.Va. 145,3 ; N.C. 3093 ; Ky. 82,3 ; Tenn. 2404 ; Mo. 3403 ; Ark. 4829 ; Tex. 3448 ; Cal. 7481 ; Col. 2520 ; Dak. Civ. C 1453 ; Ida. ih. 5; Wy. ih. 5 ; Uta. ih. 7 ; S.C 1309 ; Ga. 1926 ; Ala. 2069 ; Miss. 1009 ; Fla. 159,5 ; D.C. 494. When property constitutes a part of such capital it must be appraised : Fla. 159,6. § 5347. Partnership deemed General. Until the certificate is duly made, ac- knowledged, and recorded, and, in states where it is required, the affidavit filed, as above, no such limited partnership is deemed to be formed : N H. 118,4 ; Me. 33, 3 ; Vt. 3692 ; E.I. 135,4 ; Ct. 18,8,4 ; N.Y. 2,4,1,8 ; N.J. Partnership), 8 ; Pa. Limited Partnership, 8 ; O. 3147 ; Ind. 6036 ; 111. 84,8 ; Mich. 2349 ; Wis. 1708 ; Minn. 30,8 ; Kan. 74,9 ; Neb. 1,65,8 ; Md. 33,6 ; Del. 64,3 ; Va. 142,4 ; W.Va. 145,4 ; N.C. 3094 ; Ky. 82,4 ; Tenn. 2405 ; Mo. 3404 ; Ark. 4830 ; Tex. 3449 ; Cal. 7482 ; Ore. 43,4 ; Nev. 471 ; Col. 2521 ; Wash. 2373 ; Dak. Civ. C 1454; Ida. ib. 6 ; Mon. G. L. 946 ; Wy. ih. 6 ; Uta. ih. 8 ; S.C 1310 ; Ga. 1927; Ala. 2069-70 ; Miss. 1110 ; Fla. 159,7 ; D.C 495. The same would be implied in the other states having similar requirements. LIMITED PARTNERSHIPS. 647 So, if any false statement is made in such certificate or affidavit, all the per- sons interested in the partnership are, in nearly all states, liable as general part- ners (see § 5344 for citations) : N.H. 118,4 ; Mass. 75,4 ; Me. 33,4 ; Vt. ; K.I 135,7 ; Ct. 18,8,5 ; N".Y. ; N.J. ; Pa. ; O. 3145 ; Ind ; 111. ; Mich. ; Wis. ; lo. 2154 Minn. ; Kan. ; Neb. ; Md. ; Va. ; W.Va. ; N.C. 3095 ; Ky. ; Tenn. 2406 ; Mo. Ark. ; Tex. ; Cal. 7501 ; Ore. ; Nev. ; Col. ; Wash. ; Dak. Civ. C. 1468 ; Ida. ih. 4 and 19 , Men. G. L. 946 ; Wy. ib. 4 ; Uta. ; S.C. ; Ga. ; Ala. 2071 ; Miss. ; Fla. ; D.C. 496. § 5348. Effect of Certificate. A copy of such certificate is prima fade evidence of the matters therein contuiued : Ct. 18,8,4 ; Ga. 1926. The partnc^rship is responsible only for the acts of the general partners designated as spe- cially authorized as aforesaid [§ 5343 (3) ] : Ct. One who, upon making a contract with a partnership, accepts from or gives to it a written memorandum of the contract, stating that the partnership is special, and giving the names of the special partners, cannot afterwards charge the persons thus named as general partners upon that contract by reason of an error or defect in the proceedings for the creation of the special partnership, prior to the acceptance of the memorandum, if an effort has been made by the partners, in good faith, to form a special partnership in the manner required by $ 5342 : Cal. 7503 ; Dak. Civ. C. 1470; Ida. ib. 21 ; Wy. ih. 21. § 5349. Evidence of Publication. The affidavit of the fact of publication made by tlie editor or publi.'slier of the newspaper may, in many states, be filed with the clerk or record officer, and will be evidence of the facts therein contained : N.Y. 2,4,1,10 ; N.J. Partnership, 10 ; Pa. Lmiited Partnership, 11 ; 111. 84,10 ; Mich. 2351 ; Wis. 1710 ; lo. 2156 ; Minn. 30,10 ; Kan. 74,11 ; Neb. 1,65,10 ; Md. 33,8 ; N.C. 3097 ; Tenn. 2408 ; Ark. 4832 ; Tex. 3451 ; Cal. 7484 ; Dak. Civ. C. 1456 ; Ida. ib. 8 ; Wy. ib. 8 ; Uta. ib. 10 ; S.C. 1312 ; Ga. 1929 ; Ala. 2073 ; Miss. 1012 ; D.C. 499. So, in Maryland, the affidavit of any disinterested person, when the publication is by posting. § 5350. Renewals or continuances of a limited partnership beyond the time originally fixed for its termination must, in all the above states, be certified, acknowledged, recorded, published, and an affidavit of a general partner made in states where it is required (§ 5346) in the manner required for an original part- nership : N.H. 118,9; Mass. 75,7; Me. 33,5; Vt. 3694; E.I. 135,6; Ct. 1882,8; N.Y. 2,4,1,11 ; N.J. Partnership, 11 ; Pa. Limited Partnership, 12 ; O. 3148 ; Ind. 6038; 111.84,11; Mich. 2352 ; Wis. 1711 ; lo. 2157 ; Minn. 30,11 ; Kan. 74,12 ; Neb. 1,65,11 ; Md. 33,9 ; Del. 64,3 ; Va. 142,6 ; W.Va. 145,6 ; N.C. 3098 ; Ky. 82,6 ; Tenn. 2409 ; Mo. 3406 ; Ark. 4833 ; Tex. 3452 ; Cal. 7485,7507-8 ; Ore. 43,5 ; Nev. 473 ; Wash. 2374 ; Dak. Civ. C. 1457 ; 1471-2 ; Ida. ib. 9 and 23 ; Mon. G. L. 947 ; Wy. ib. 9 and 23 ; Uta. ib. 11 ; S.C. 1313 ; Ga. 1930 ; Ala. 2074 ; Miss. 1018 ; D.C. 500. But in one, no publication of such renewal is required, though required in the first instance : Tenn. Publication for two weeks only is enough : Ct. And in several, no affidavit is required in the case of renewal : Ct., Va., W.Va., Ky. So, in one other, the affidavit may state that the cash was originally paid in, and has not been impaired, but is now represented by stock : N.C. And in one other, that the books have been balanced, and the balance of profit or loss ascer- tained, and it must also state the amount to the credit of the special partners, after a true account of the assets : Mo. Such renewal may be made within thirty days after the dissolution : N.H. 1879,15. 648 PARTNERSHIP. And in nearly all of them, every partnership not thus renewed or continued will be deemed general : N.H. ; Me. ; Vt. ; E.I. ; N.Y. ; K J. ; Pa. ; 0. ; Ind. ; 111. ; Mich. ; Wis. ; lo. ; Minn. ; Kan. ; Neb. ; Md. ; Va. ; W.Va. ; N.C. ; Tenn. ; Mo. ; Ark. ; Tex. ; Ore. ; Nev. ; Wash. ; Ida. ; Mon. ; Wy. ib. 22 ; Uta. ; S.C. ; Ga. ; Ala. ; Miss ; D.C. 501. And the same is implied in the other .states cited above. Notice of alterations must be given to the general partner, and must be duly acknowledged, certified, and recorded as in $ 5344 : Pa. ib. 32. § 5351. Dissolution. Any alteration in the number or persons of the part- ners or the nature of the business will, in most states, be deemed a dissolution of the partnership: N.H. 118,8 ; KY. 2,4,1,12 ; N.J. Partnership, 12; Pa. Limited Partnership, 13 ; 0. 3149 ; Mich. 2353 ; Wis. 1712 ; lo. 2158 ; Minn. 30,12 ; Kan. 74,13 ; Neb. 1,65,12 ; Md. 33,10 ; Va. 142,5 ; W^Va. 145,5 ; N.C. 3099 ; Ky. 82,5 ; Tenn. 2410; Mo. 3405; Ark. 4834; Tex. 3453 ; Cal. 7507; Dak. Civ. C. 1471 ; Ida. ib. 22 ; Wy. ib. 22 ; Uta. ib. 12 ; S.C. 1314 ; Ga. 1931 ; Ala. 2075 ; Miss. 1019 ; D.C. 502. So, any alteration in the capital or shares thereof contributed, held, or owned by any special partner: N.H., N.Y., N.J., Pa., O., Mich., Wis., lo., Minn., Kan., Neb., Md., Ya., W.Va., N.C, Tenn., Ark., Tex., Uta., S.C, Ga., Ala., DC. So, in two of thero, any withdrawal of capital : Ky., Mo. Or any diminution thereof otherwise than by a loss in business or the defraying of such personal expenses as may have been originally agreed for (see also § 5356) : Ya., W.Va., Ky., Mo. Anything which would effect the dissolution of a general partnership (§ 5331) : 0. 3154; Cal. 7509; Dak. Civ. C. 1473. Or, in most states, any alteration in any other matter specified in the original certificate : N.H., N.J., Pa., 0., Mich., Wis., lo., Minn., Kan., Neb., Md., Va., W.Va., N.C, Tenn., Ark., Tex., Uta., S.C, Ga., Ala., Miss., D.C. And generally limited partnerships formed under the statute may be dissolved in the same cases which would in equity be cause of dissolving an ordinary partnership : 0. 3154; 111. 84,15; Miss. 1020. Any partnership carried on after such alterations specified above shall, in most states, thereupon become general: N.H. ; N.Y.;" N. J. ; Pa.; 0.; Mich.; Wis.; lo. ; Minn. ; Kan. ; Neb. ; Md. ; Va. ; W.Va. ; N.C. ; Ky. ; Tenn. ; Mo. ; Ark. ; Tex. ; Ida. ; Wy. ; Uta. ; S.C ; Ga. ; Ala. ; Miss. ; D.C 503. Unless it be duly renewed in the manner originally provided: N.J., Pa., 0., Mich., Wis., lo., Minn., Kan., Neb., Md., Ya., W.Va., N.C, Tenn., Ark., Tex., Ida., ^Ny., S.C, Ga., Ala., Miss., D.C. NctTE. — "In these state.s it will be deemed general only as to business conducted after the alteration. § 5352. Limitations. But one or more new special partners may be taken in upon actually paying in an additional amount of capital, an additional certificate being duly filed by the general partners, stating such facts: N.Y. 2,4,1,12. So, in Pennsylvania, the capital may be increased either by taking in new special partners or by new subscription from old partners, such increase being made in pursuance of the consent of the partners, as expressed in the original articles of partnership or any subsequent instru- ment, and a certificate of such increase being duly acknowledged, certified, and recorded ; but no neglect in recording the certificate of any such increase of capital, or of the sale or transfer of interest ot any special partner, shall operate a dissolution or make the special partners liable as general partners : Pa. Limited Partnership, 14-15. § 5353. The Death of a Partner, general or special, will also cause a dissolution of the partnership : N.Y. 2,4,1,12; 111. 84,13; D.C. 517. LIMITED PARTNERSHIP. 649 So, the insolvency of a general partner or of the partnership : D.C. The insolvency of a special partner does not, in Pennsylvania, cause a dissolution of the partnership^ hut his interest may be sold by his assignees : Pa. ib. 30. Unless the articles of partnership specify that in such case the partnership shall be carried on by the survivors, in which case it may be so continued with the assent of the deceased partner's representatives : N.Y., 111. But such death does not cause a dissolution, unless the articles so pi'ovide : Fla. 159,20. So, in two others, if a special partner die, his administrators may continue his interest, or sell it: N.Y; Pa. ib. 31. And the partnership is not thereby dissolved, unless it is so provided in the agreement : Pa. If it be provided that death shall not work a dissolution, and the general partners surviving con- tinue the business, the heirs and executors of such deceased partner stand in tlie relation of special partners, unless otherwise provided in the articles or agreed between them : 111. 84,14. § 5354. Sale of Partnership Interest. Any special partner, or his legal repre- sentatives, if deceased, may sell his interest in the partnership without working a dis- solution thereof or rendering the partnership general ; and the purchaser thereupon liecomes a special partner with the same rights of an original special partner : N.Y. ; N.J. Partnership, 26 ; Pa. ib. 28 ; Mich. 2361 ; Kan. 74,13. But a notice of such sale must be filed or recorded and puhlished with the original record : N.Y. ; N.J. ; Pa. ; Mich. 2361-2 ; Kan. And such partner making such sale must have the written assent of the other partners : Pa., Kan. This consent may be given in advance in the original certificate of partnership or other like instrument : Pa. ib. 29. A sale of a part interest or share may be made in the same way : Pa. The general partners or either of them may purchase a part or the whole of the interest of one or more special partners : Pa. A special partner may devise his interest : Pa. ib. 31. The interest of a general partner may be sold in the same way : Mich. The liability of the original partners remains unchanged, except as between each other, until the certificate is filed and published as hereinbefore : Mich. 2363. A general partner in a limited partnership, with the written consent of his partners, by deed acknowledged and recorded, or will, may sell, assign, or bequeath his interest in the partner- ship : Pa. ib. 27. So, his executor or administrator may do so : Pa. And a corresponding alteration must be made in the name of the firm : Pa. § 5355. Voluntary Dissolution. No dissolution of a partnership by the acts of the parties can take place previous to the time specified in the certificate of its formation or renewal until a notice of such dissolution (1) is filed and recorded in the clerk's office or registry in which the original certificate was recorded : N.H. 118,10 ; Mass. 75,10 ; Me. 33,9 ; Vt. 3698 ; E.I. 135,13 ; N.Y. 2,4,1,24 ; N.J. ib. 24 ; Pa. ib. 26 ; 0. 3159 ; Ind. 6044 ; 111. 84,12 ; Mich. 2359 ; Wis. 1723 ; lo. 2170 ; Minn. 30,21 ; Kan. 74,20 ; Neb. 1,65,24 ; Md. 33,21 ; Del. 64,8 ; Va. 142,11 ; W.Va. 145,11 ; N.C. 3108 ; Tenn. 2421 ; Mo. 3411 ; Ark. 4846 ; Tex. 3464 ; Cal. 7509 ; Ore. 43,9 ; Nev. 479 ; Col. 2526 ; Wash. 2378 ; Dak. Civ. C. 1473 ; Ida. ib. 24; Mon. G. L. 953 ; Wy. ib. 24 ; Uta. ib. 21 ; S.C. 1324; Ga. 1943; Ala. 2087; Miss. 1020; Fla. 159,19; D.C. 517. (2) And such notice must, in most states, be duly published, (a) as in § 5346, respectively : Mass. ; Me. ; Vt. ; R.I. ; Ind. ; 111. ; Mich. ; Kan. ; Del. ; Va. ; W.Va. ; Ky. 82,11 ; Mo. ; Ore. ; Nev. ; Col. ; Wash. ; Dak. ; Ida. ; Wy. ; Uta. ; Ga. ; D.C. ; (^) " once a week for four weeks : " N.H., N.Y., N.J., Pa., 0., Wis., lo., Minn., Neb., Md., N.C, Ark., Tex., Ga., Fla. ; (f) for three weeks : Mon., Ala. ; (5) for three months : S.C. ; (e) for thirty days : Miss. § 5356. Capital. No part of the sum contributed by any special partner to the capital stock shall, in nearly all, be withdrawn by him or paid or trans- 650 PARTNERSHIP. ferred to him in the shape of dividends, profits, or otherwise at any time during the continuance of the partnership : N.H. 118,7 ; Mass. 75,8 ; Me. 33,7 ; Vt. 3696 ; K.I. 135,9 ; Ct. 18,8,7 ; N.Y. 2,4,1,15 ; N.J. PartmrsUp, 15 ; Pa. Limited FartiursUp, 17; 0. 3151; Ind. 6040; III. 84,18; Mich. 2355 ; Wis. 1714; lo. 2161 ; Minn. 30,15 ; Kan. 74,15 ; Neb. 1,65,15 ; Md. 33,13 ; Del. 64,5 ; Va. 142,8 ; W.Va. 145,8 ; N.C. 3102 ; Ky. 82,8 ; Tenn. 2413 ; Ark. 4837 ; Tex. 3456 ; Cal. 7493 ; Ore. 43,7 ; Nev. 475 ; Col. 2524 ; Wash. 2376 ; Dak. Civ. C. 1463 ; Ida. %h. 14 ; Mon. G. L. 949 ; Wy. ih. 14 ; Uta. ih. 15 ; S.C. 1329 ; Ga. 1934 ; Ala. 2078 ; Miss. 1015 ; Fla. 159,11 ; D.C. 508. But any partner may annually receive lawful interest on the sum so con- tributed by him if the payment thereof does not reduce the original capital: N.H. ; N.Y. ; N.J. ; Pa. ; 0. ; 111. ; lo. ; Md. ; N.C. ; Tenn. ; Ark. ; Tex. ; Cal. 7494 ; Wash. ; Dak. Civ. C. 1464 ; Ida. ih. 15 ; Wy. il. 15 ; S.C. ; Ga. ; Ala.; Miss. ; Pla. ; D.C. So, in others ; and it may not exceed twelve per cent : Wis., Neb., Uta. ; so, ten per cent: Ct. 1875,67. And after this, if there are profits actually earned, he may receive his proportion : N.Y., N.J., Pa., 0., 111., Wis., lo., Neb., Md., N.C, Tenn., Ark., Tex., Cal., Dak., Ida., Wy., Uta., S.C, Ga., Ala., Miss., Fla., D.C lu Missouri, " if the whole or any part of the capital advanced by a special partner be by him withdrawn, or if he fail actually to contribute towards the capital as agreed, he is liable as a general partner : " Mo. 3408. Penalty. If it shall appear that by payments of interest or profits to the special partner the original capital has been reduced, the partner receiving it (1) will be liable for such an amount as will make good his share of the capital (with interest, except in . North Carolina, Tennessee, Mississippi, Georgia, and Florida) : Mass. ; Me. ; Vt. ; Pt.I ; N.Y. 2,4,1,16 ; N.J. ih. 16 ; Pa. ih. 18 ; 0. 3152 ; Ind. ; 111. ; Mich. ; Wis. 1715 ; lo. 2162 ; Minn. 30,15 ; Kan. 74,15 ; Neb. 1,65,16 ; Md. 33,14; Del.; Va. 142,8; W.Va. 145,8; N.C. 3103; Ky. ; Tenn. 2414; Ark. 4838 ; Tex. 3457 ; Ore. 43,7 ; Nev. 475 ; Col. 2524 ; Wash. ; Mon. G. L. 949 ; Uta. ih. 16 ; Ga. 1935 ; Ala. 2079 ; Miss. ; Fla. 159,12 ; D.C. 509 ; (2) he will be liable as a general partner: N.H. ; Cal. 7495; Dak. Civ. C. 1465 ; Ida. ih. 16; Wy. ih. 16. § 5357. Suits in relation to the business of the partnership may generally be brought and conducted by and against the general partners in the same manner as if there were no special partners: N.H. 118,11 ; Mass. 75,9 ; Me. 33,8 ; Vt. 3697; Pt.I. 135,12; Ct. 18,8,8; N.Y. 2,4,1,14; N.J. Partnership, 14; Pa. Limited Partnership, IQ; 0. 3161 ; Ind. 6043 ; 111.84,17; Mich. 2358 ; Wis. 1718; lo. 2160 ; Minn. 30,14 ; Kan. 74,19 ; Neb. 1, 65,14 ; Md. 33,19 ; Del. 64,7 ; Va. 142,12 ; W.Va. 145,12 ; N.C. 3101 ; Ky. 82,12 ; Tenn. 2412 ; Mo. 3412 ; Ark. 4836 ; Tex. 3455 ; Cal. 7492 ; Ore. 43,8 ; Nev. 478 ; Col. 2525 ; Wash. 2377 ; Dak. Civ. C. 1462; Ida. ih. 13; Mon. G. L. 952; Wy. ih. 13; Uta. ih. 14; S.C. 1316 and 1330 ; Ga. 1933 ; Ala. 2077 ; Miss. 1021 ; Fla. 159,10 ; D.C. 505 and 513. E.xcept (1) when by the provisions of this article such special partners are to be deenoed general : N.H., Mass., Me., Vt., R.I., Ct., 0., Ind., 111., Mich., Minn., Md., Del., Va., W.Va., Ky., Mo., Ore., Nev., Col., Wash., Mon., S.C, Ga., Miss., Fla., D.C In such case, in most states, the joinder of such special partner is optional : N.H., Mass., Me., Vt., R.I., 0., Ind., 111., Mich., Minn., Md., Del., Va., W.Va., Ky., Mo., Nev., Col., Mon., S.C, Ga., Miss., Fla., D.C LIMITED PARTNERSHIP. 651 So, (2) when they are held responsible under § 5356 for sums withdrawn : N.H., Mass., Vt., R.I., Ind., 111., Mich., Minn., Md., Del., Ore., Nev., Col., Wash., Mon., Ga. But in Mississippi, suits in relation to partnership transactions may also be brought against all the partners, general or special, without discrimination ; and the latter may plead separately : Miss. 1022. Or any special partner may be sued separately : Miss. See also in Part IV. § 5358. Firm Name. Ill most States, the names of the general partners only- may be inserted in the firm name : Mass. 75,3 ; Me. 33,6; Vt. 3695 ; E.I. 135,8 ; Ct. 18,8,3 ; N.Y. 2,4,1,13 ; N.J. Partnership, 13 ; Pa. Limited Partnership, 34 ; 0. 3150, Amt. ; Ind. 6U39 ; 111. 84,16; Mich. 2354; Wis. 1713; lo. 2159 ; Minn. 30,13 ; Kan. 74,14 ; Neb. 1,65,13 ; Md. 33,11 ; Del. 64,4 ; Va. 142,7 ; W.Va. 145,7 ; N.C. 3100 ; Ky. 82,7 ; Tenn. 2411 ; Mo. 3407 ; Ark. 4835 ; Tex. 3454; Ore. 43,6 ; Nev. 474 ; Col. 2523 ; Wash. 2375 ; Dak. Civ. C. 1458 ; Ida. ib. 25 ; Mon. G. L. 948 ; Wy. ib. 25 ; Uta. ih. 13 ; S.C. 1315 ; Ga. 1932 ; Ala. 2076 ; Miss. 1013 ; Fla. 159,9 ; D.C. 504. Without the addition of the word " Company " or any other general term : Mass., Me., Vt., N.J., Pa., lo., Kan., Va., W.Va., N.C, Ky., Tenn., Mo., Ark., Tex., Ore., Wash., Dak., S.C, Ga., Ala., Miss., Fla. But if there are more than three general partners, all their names need not be in- serted : Mass., Vt. So, in others, if there are two or more general partners, the name of one or more only need be inserted : Ct. ; N.Y. ; Pa. ib. 35 ; 0. ; Wis. ; Minn. ; Md. And the words "and Company " may be added : N.Y., Pa., 0., Mich., Wis., Minn., Md., D.C If the surname of a special partner be the same as that of a general partner, such surname may be used without rendering him liable as a general partner under § 5359 : Mass. ; Pa. ih. 36. A firm of general partners that have transacted business under one firm name for more than five years may organize a special partnership to continue the same business, containing any of the same or additional partners, and adopt the firm name before used, publication being duly made under § 5360 : 0. 3150. The name of a special partner may not be used unless the word " limited " be added lo the firm name : Cal. 7510 ; Ida. ; Wy. So, the word " limited " must be attached to the style and signature of the firm in all business transactions : Md. 33,12 ; 1880,203 ; Fla. 159,2. And if this be done, such limited partner may take part in the business without on that ac- count being deemed a general partner : Md. Any limited partnership may use the firm name of any former general or limited partnership when a majority of the partners, general or special, in such former partnership or of the survivors are members of the new one, or when such majority consents to the use of such firm name in writing, upon publishing and recording a certificate with the county clerk : N.Y. 1868,256. § 5359. Penalty. (For citations, see § 5358.) If the name of a special part- ner be used in the firm (with his privity : N.H., Mass., Me., Vt., E.I., N.Y, N. J., Pa., 0., Ind., Ill, Mich., Wis., lo., Minn., Kan., Md., Del, Va., W.Va., N.C, Tenn., Ark., Tex., Ore., Nev., Wash., Ida., S.C, Ala., Fla., D.C ; with his consent : N.H., Mass., Me., Vt., RL, Ind., Mich., Kan., Del., Ky., Mo., Ore., Nev., Col., Wash., Ida., Mon., Miss.) he is deemed a general partner : N.H. 118,6 ; Mass. ; Me. ; Vt. ; E.I. ; Ct. ; N.Y. ; N.J. ; Pa. ih. 34 ; 0. ; Ind. ; 111. ; Mich. ; Wis. ; lo. ; Minn. ; Kan. ; Neb. ; Md. 33,12 ; 1880,203 ; Del. ; Va. 142,7 ; W.Va. 145,7 ; N.C. ; Ky. ; Tenn. ; Mo. ; Ark. ; Tex. ; Ore. 43,6 ; Nev. 474 ; Col. 2523 ; Wash. 2375 ; Mon. G. L. 948 ; Uta. ih. 13 ; S.C. ; Ga. 1932 ; Ala. ; Miss. ; Fla. ; D.C. 506. § 5360. Publication. In several states the partnership are required to post in some conspicuous place a sign bearing the full names of all the partners : N.Y, 652 PARTNERSHIP. 2,4,1,13 ; Pa. Limited Partnersldp, 35 ; 0. 3150, Amt. ; Wis. ; Minn. ; Ky. 82,13 ; Mo. 3413 ; Dak. Civ. C. 1458 ; S.C.« 1326 and 1328. Aud distinguishing which are limited partners : Pa., Wis., Ky., Dak. With the words " limited partners : " Me. And in default thereof no action shall be dismissed by reason of the pleadings not being correct as to the names and number of the partners : N.Y., 0., S.C. See also in Part°IV. And there is also a penalty for failing to do so : S.C. See in Part V. There is also a penalty for so posting " Co. " or ^' Company" when such is not the fact : S.C. 1327. In default of sucli" notice, the special partners are liable as general partners: Ky., Mo. In suits against a partnership, the general partners whose names are used in the firm are the only necessary parties defendant; and a judgment or decree recovered against them has the same legal effect as if against all the general partners, and execution may issue accordingly: Minn. 66,42 ; Md. 33,11. See, for other states, in Part IV. Note. — " This section does not apply, in these states, to special partners. § 5361. Of Partnership In Commendam. Partnership in commendam is formed hy a contract by which one person or partnership agrees to furnish another person or partnership a certain amount, either in property or money, to be employed by the person or partnership to whom it is furnished in his or their own name or firm, on condition of receiving a share in the profits, in the proportion determined by the contract, and of being liable to losses and expenses to the amount furnished and no more. He who makes this contract is called, with respect to those to whom he makes the advance of capital, a partner in commendam. Every species of partnership may receive such partners. It is therefore a modification of which the several kinds of partnerships are susceptible rather than a separate division of partnerships. The proportion of profits to be received by the partner in commendam may be regulated by the covenant of the parties, as may also, with respect to each other, the proportion of losses and expenses to be borne by each of the partners ; but as respects third persons, the whole sum furnished or agreed to be furnished by such partner is liable for the debts of the partnership. In no case, except as is hereinafter expressly provided, shall the partnerwho has no other in- terest in the concern than that of partner in commendam be liable to pay any sum beyond that which he has agreed to furnish by his contract. If it has been paid and lost in the business of the partnership, he is exonerated from any other payment. If only part be unpaid, he is liable for that amount and no more to the creditors of the partnership. The partner in commendam cannot be called upon by the partnership or its creditors to refund any dividend he may have received of net profits (fairly made during the solvency of the partners, and bona fide) at a time stipulated in the articles of paitnership. The partner in commendam cannot bind the other partner by any act of his ; he is not con- sidered as a partner further than is specially provided in this section. Partnership in commendam must be made in writing, and must be recorded in the manner hereinafter directed, or otherwise the partner in commendam will be considered as a common partner in the concern, and will be subject to all the responsibilities towards third persons that would attach to any of the other partners in the business for which he made his advance. The contract must express the amount furnished, or agreed to be furnished, by the partner in commendam, the proportion of profits he is to receive and of the expenses and losses he is to bear. It must state whether it has been received, and whether in goods, money, or how otherwise, and if not received, it must contain a stipulation to pay or deliver it. It must be signed by the parties in the presence of one or more witnesses, and shall be recorded in full by the officer authorized to record mortgages in the place where the principal business of the part- nership is carried on. If it be a commercial partnership, and consists of several houses or establishments in different parts of the State, such recording shall be made in each of such places. The record mentioned in the preceding paragraph sliall be made in six days from the time of the execution of the contract in the place where the principal establishment is situated, and if there are more than one, then allowing one day for every two leagues' distance between such principal establishment and the others. RIGHTS AND LIABILITIES IN LIMITED PARTNERSHIP. 653 The officer authorized to record mortgages shall keep a separate book for the purpose of recording acts of partnership, which shall be at all office hours open for the inspection of any person who may choose to consult the same. When the act is under private signature, the record shall be only made on the acknowledgment of the act before a recorder, a notary, or the person authorized to make the record, or by a proof of the execution made in the same manner by one of the subscribing witnesses. The business of the partnership, to which the partner in commendam has contributed his ad- vance, must not be carried on in the name of such partner, or in his name jointly with others, or by him or by his agency as agent, or attorney for the other partners, but by those to whom he has made the advance, and in their name or firm ; and if the advance in commendam has been made to one person only, such person must carry on the business in his sole name, and must not make the addition '' and company,''^ or adopt any firm name that may cause it to be under- stood that he has any partners. And if the partner in commendam shall take any part in the business of the partnership or permit his name to be used in the firm, or knowingly permit any single person to whom he has made the advance to add any words to his name or firm that may imply that he has other partners besides the partner in commendam when in fact he has none, such partner in commen- dam shall be liable to all the responsibilities of a general partner in the business for which he has made the advance. If the person to whom the partner in commendam has made the advance shall without his consent use his name in the firm, or if, not having any other partner, he shall adopt or use any such addition as is expressed in the last preceding paragraph, the partner in commendam may immediately withdraw the sum he has advanced, and, on giving notice in two of the public newspapers, shall be freed from all responsibility, either to the partners or to third persons, from the time of such notice. The partner in commendam cannot withdraw the stock he has furnished at a time when those to whom he has advanced it are in failing circumstances, or when there is a reasonable apprehension that they will become insolvent : La. 2839-2851. Of Commercial Partnerships. All the provisions of this chapter are also applicable to commercial partnerships, except as otherwise provided for : La. 2852. Art. 537. Rights and Liabilities of the Partners in Limited Part- nerships. § 5370. General Principles. In all cases not otherwise provided for in this and the preceding article, the members of a limited partnership are subject to all the liabilities and entitled to all the rights of general partners : Mass. 75,12 ; Me. 33, 10 ; Vt. 3699 ; E.I. 135,14 ; Ind. 6045 ; Mich. 2360 ; Kan. 74,21 ; Del. 64,9 ; Cal. 7500 ; Ore. 43,10 ; Nev. 480 ; Wash. 2379 ; Dak. Civ. C. 1467 ; Ida. ib. 18 ; Mon. G. L. 954 ; Wy. ih. 18. § 5371. Account. General partners are, in most states, liable to account to each other and to special partners for the management of the concern, both at law and equity, as partners in ordinary partnerships : Me. 33,10 ; K.Y. 2,4,1,18 ; N.J. ih. 18; Pa. ih. 20; O. 3154; 111. 84,20 ; Wis. 1717; lo. 2164; Minn. 30,22; Kan. 74,17; Neb. 1,65,18; Md. 33,22; 72,93; KG. 3105; Tenn. 2416; Ark. 4840; Tex. 3459; Uta. ih. 18; S.C. 1318; Ga. 1937; Ala. 2081; Miss. 1017; Fla. 159,14; D.C. 518. So, a special partner is entitled to the same remedies to enforce such accounts that a general partner is entitled to : Miss. § 5372. Liability. Special partners are not, in many states, except as in §§ 5347,5359,5360,5374,5376, personally liable for any debts of the partnership : N.H. ; Vt. ; E.I. ; 0. ; Ind. ; 111. ; Del. ; Va. ; W.Va. ; Ky. ; Tenn. ; Mo. ; Ore. ; Nev. 469 ; Wash. ; Mon. So, in most others, they are not liable for the debts of the 654 PARTNERSHIP. partnership beyond the sum so contributed by them as capital (§ 5341) : Mass. Me. ; Ct. ; N.Y. ; N.J. ; Pa. ; 0. ; Mich. ; Wis. ; lo. ; Minn. ; Kan. ; Neb. ; Md. NC.'; Ark.; Tex. 3443; Cal. 7501; Col. 2515 ; Dak. Civ. C. 1468 ; Ida. ih. 19 Wy. \h. 19 ;' Uta. ; S.C. ; Ga. ; Ala. ; Miss. 1023 ; Fla. ; D.C. 491. For citations, see § 5371. Special partners contributing capital are not liable for debts previously contracted by the general partners : Pa. Limited Partnership, 17 ; Ga. 1934. § 5373. Fraud. Every partner guilty of fraud in partnership affairs is liable (1) civilly to the person injured to the extent of his damage : N.Y. 2,4,1,19 ; N.J. ih. 19 ; Pa. ib. 21 ; 0. 3155 ; 111. 84,21 ; Wis. 1724 ; lo. 2165 ; Kan. 74,18 ; Neb. 1,65,19; Md. 72,93; N.C. 3106; Tenn. 2417; Ark. 4841; Tex. 3459; S.C. 1319; Ga. 1938; Ala. 2082; Fla. 159,15. (2) And also, in many, to an indictment as for a misdemeanor: N.Y. ; N.J. ; Pa. 1885,38 and 49 ; 0. 7077 ; 111 ; Wis. ; lo. ; Minn. 30,23 ; Kan. ; Neb.; Md.; N.C. ; Tenn.; .A.rk. ; Cal. 13358; Dak. Civ. C. 424; S.C; Ga. ; Ala.; Fla. See also Part V. § 5374. Sales in Contemplation of Insolvency. Every sale, assignment, or transfer (A) of any of the property or effects of such limited partnership, made by it when insolvent or in contemplation of insolvency, or after or in contempla- tion of the insolvency of any partner, with the intent of giving a preference to any creditor of such partnership or of such insolvent partner over other creditors of such partnership ; and every judgment confessed, lien given, or security given by such partnership under like circumstances and with like intent, is void as against the creditors of such partnership : N.Y. 2,4,1,20 ; N.J. ih. 20 ; Pa. ih. 22 ; 0. 3156; 111. 84,22; Wis.. 1719; lo. 2166; Minn. 30,17; Neb. 1,65,20; Md. 33,15 ; Va. 142,10 ; W.Va. 145,10 ; Ky. 82,10 ; Tenn. 2418 ; Mo. 3410 ; Ark. 4842 ; Tex. 3460 ; CaL 7496 ; Dak. Civ. C. 1466 ; Ida. ih. 17 ; Wy. ih. 17 ; S.C. 1320; Ga. 1939; Ala. 2083; Fla. 159,16; D.C. 510. So, (B) every sale, etc., of the property, etc., of a general or special (except in Florida and District of Columbia) partner in like circumstances, made with intent of giving any creditor of his own or of the partnership such preference, or any iudgment confessed, lien created, or security so given, is void as above: N.Y. ih. 21 ; N.J. ih. 21 ; Pa. ih. 23 ; III ; Wis. 1720 ; lo. 2167 ; Minn. 30,18 ; Neb. 1,65,21 ; Md. ih. 16 ; Va. ; W.Va. ; Ky. ; Tenn. ; Mo. ; Ark. 4843 ; Tex. 3461 ; Cal. ; Dak. ; Ida.; Wy. ; S.C. 1321; Ga. 1940; Ala. 2084; Fla.; D.C. Penalty. Any special partner violating the respective provisions of § 5374, or concurring in any such violation by the partnership or an individual partner is, in most states, liable as a general partner: N.Y. 2,4,1,22 ; N.J. ih. 22 ; Pa. ih. 24; 0. 3157; Wis. 1721; lo. 2168; Minn. 30,19; Neb. 1,65,22; Md. 33,17; Tenn. 2419 ; Ark. 4844 ; Tex. 3462 ; Ida. ih. 19 ; Wy. ih. 19 ; S.C. 1322 ; Ga. 1941 ; Ala. 2085; Fla. 159,17; D.C. 511. § 5375. Powers of Special Partners. In most states, the laws prescribe that the general partners only shall be authorized to transact business for the partnership: N.H. 118,6; Me. 33,6; E.I. 135,8; N.Y. 2,4,1,3; N.J. Partnership, 3 and 25; Pa. Limited Partnership, 3; 0. 3153; Ind. 6039; 111. 84,3; Mich. 2343 ; Wis. 1716 ; lo. 2149 ; Minn. 30,3 ; Kan. 74,3 and 16 ; Neb. 1,65,3 ; Md. 33,12; Va. 142,7; W.Va. 145,7; N.C. 3104; Ky. 82,2; Tenn. 2400; Mo. 3407; Ark. 4824; Tex. 3444; Cal. 7489; Nev. 474; Col. 2516; Dak. Civ. C. 1459; RIGHTS AND LIBILITIES IN LIMITED PARTNERSHIP. 655 Ida. lb. 10; Wy. ih. 10; Uta. ib. 3; S.C. 1305; Ga. 1922; Ala. 20G5 ; Miss. 1014; Fla. 159,13; D.C. 507. Nor, in many, can a special partner be employed for that purpose as attorney or agent, or otherwise : N.Y. ih. 17 ; KJ. ib. 17 ; Pa. ib. 19 ; O. ; 111. 84,19 ; Wis. ; lo. 2163 ; Minn. 30,16 ; Kan. ; Neb. 1,65,17 ; N.C. ; Ky. ; Tenn. 2415 ; Mo. ; Ark. 4839 ; S.C. ; Ga. 1936 ; Ala. ; Miss. 1016. No special partner is generally authorized to sign for the partnership, or to bind it : KY., KJ., Pa., Ill, Mich., Wis., lo., Minn., Kan., Neb., Ky., Tenn., Ark., Tex., Col., Uta., S.C, Ga., Ala., Miss. In Florida, " the copartners shall be authorized to transact the business of the concern and sign for the partnership to bind the same and its assets except in oases where the articles of copartnership provide tliat any one or more members only who shall be designated by name be authorized to sign the firm name : " Fla. 159,1. And the articles of partnership may pro- vide that any one or more members of the firm or his or their legal representatives having power of attorney shall be the only persons authorized to sign the firm name ; and in such case if any other partner contract debts for the firm without their knowledge, it is felony : Fla. 159,2. § 5376. Penalty. A special partner interfering contrary to the provisions of § 5375 is generally to be deemed a general partner : N.Y. ; N.J. ; Pa. ib. 19 ; 0. ; Ind. ; 111. ; Wis. ; lo. ; Minn. ; Kan. ; Neb. ; Md. ; Va. ; W.Va. ; N.C. ; Ky. 82,7 ; Tenn. ; Mo. ; Ark. ; Tex. 7501 ; Nev. ; Col. 2523 ; Dak. Civ. C. 1468 ; Ida. ih. 19 ; Wy. ih. 19 ; Uta. ih. 19 ; S.C. 1317 ; Ga. ; Ala. 2080 ; Miss. ; Fla. ; D.C. So, in several, if a special partner make any contract respecting partnership con- cerns with any person except general partners, (1) he is deemed a general partner: N.H. 118,6; R.I. 135,8; Ind. 6039; Mich. 2354; Del. 64,4; Va. ; AY.Va. ; Cal. ; Nev. 474; Dak.; Mon. G. L. 948. (2) But in others he is deemed a general partner only as to such contract : Me. 33,6 ; Vt. 3695 ; Ore. 43,6 ; Wash. 2375. He is not so held if he notify the other party that he is acting only as special partner : Vt. ; or if he acted and was recognized as such: Ore., Wash. When a special partner has unintentionally done any act contrary to the foregoing provisions, he is liable as a general partner to any creditor of the firm who has been actually misled thereby to his prejudice : Cal. 7502; Dak. Civ. C. 1469; Ida. ih. 20; Wy. ib. 20. § 5377. Limitations. But a special partner may, in most states, from time to time examine the concern and advise as to its management: N.Y. 2,4,1,17; N.J. ih. 17 and 25 ; Pa. ih. 19 ; 0. 3153 ; 111. 84,19 ; Mich. 2364 ; Wis. ; lo. 2163 ; Minn. 30,16; Kan. 74,16; Neb. 1,65,17; Md. 33,12; Va. 142,7; W.Va. 145,7; N.C. 3104; Ky. 82,7; Tenn. 2415; Mo. 3407; Ark. 4839; Tex. 3458; Cal. 7490; Dak. Civ. C. 1460; Ida. ih. 11 ; Wy. ih. 11; Uta. ih. 17; S.C. 1317; Ga. 1936 ; Ala. 2080; Miss. 1016; Fla. 159,13; D.C. 507. He may sometimes act as attorney-at-law : N.C, S.C, Ga., Ala., Miss. He may be constituted agent by the general partners for negotiating sales, pur- chases, and transacting other business, upon disclosing his agency to the other party : 0. So, in several, he may act as attorney in fact under a power : 111., Tenn., Fla. It seems he may transact any business with the express assent of all the general partners : 111., Tenn. He may loan or advance money to the partnership, pay money for it, take and hold the notes, drafts, bonds, and acceptances of it as security therefor, use and lend his name and credit as seen ty for the partnership in any business thereof, and have the same rights and remedies in this respect as any other creditor might have : N.Y. ; N.J. 656 OF PERSONS. il. 25 ; Mich. ; Minn. ; Cal. 7491 ; Dak. Civ. C. 1461 ; Ida. ib. 12 ; Wy. ib. 12. Eut see § 5379. He may negotiate sales, purchases, and other business for the partnership; but such shall not be binding upon it until approved by a general partner : N.Y., N.J., Minn. He may lease lands, etc., to the general partners for partnership purposes ; N.Y. 1872,114." § 5378. Suits by Special Partners. No special partner can under any circum- stances be considered as a creditor, nor allowed to claim as such : Ct." 18,8,7. The special partners may sue the firm or be sued by it, for debts contracted with it, in the same manner as if they were not pai'tners : Va. 142,12 ; W.Va. 145,12. Note. — " i. e., as to his capital : 35 Ct. 463. § 5379. Insolvency. Ill case of the insolvency of a partnership, no special partner shall be allowed to claim as a creditor until the claims of all others are satisfied: N.H. 118,12; RI. 135,11; N.Y. 2,4,1,23; N.J. ib. 23; Pa. ib. 25; 0. 3158 ; 111. 84,23 ; Wis. 1722 ; lo. 2169 ; Minn. 30,20 ; Neb. 1,65,23 ; Md. 33,18 ; Va. 142,9; W.Va. 145,9; N.C. 3107; Ky. 82,9; Tenn. 2420, Mo. 3409; Ark. 4845 ; Tex. 3463 ; Cal. 7491 ; Dak. Civ. C. 1461 ; Ida. ib. 12 ; Wy. ib. 12 ; Uta. ib. 20 ; S.C. 1323 ; Ga. 1942 ; Ala. 2086 ; Miss. 1024;. Fla. 159,18 ; D.C. 512. See § 5378. § 5380. Assignments. No general assignment by a limited partnership in case of insolvency is, in several states, valid unless it provide for a distribution of the partner- ship property among all the creditors in proportion to the amount of their several legal claims : R.I. 135,10 ; Ind. 6041 ; Mich. 2356 ; Del. 64,6 ; Nev. 47G ; Ida. ib. 9 ; Mon. G. L. 950 ; Miss. 1025. Except that the claims of the United States, arising from bonds or duties, are first to be paid or secured : R.I., Mich. The assent of creditors to such assignment is presumed unless within sixty days after notice thereof they dissent expressly or by some act clearly implying such dissent : Ind. 6042; Mich. 2357; Nev. 477; Ida. ib. 10; Mon. G. L. 951 ; Miss. 1026. No such assignment is valid unless notice thereof be given in some newspaper pub- lished in the county where is the principal place of business within fourteen days thereafter : Ind., Mich., Nev., Ida., Mon., Miss. TITLE IL — NATUEAL EELATIONS. CHAPTER I. — OF PERSONS. Art. 600. Citizens. § 6000. General Provisions. Persons are either natural or artificial. The latter are the creatures of the law, and, except so far as the law forbids it, subject to be changed, modi- fied, or destroyed at the will of their creator ; they are called corporations : Ga. 1651. Natural persons are distinguished according to their rights or status into (1) citizens, (2) residents not citizens, (3) aliens, (4) persons of color : Ga. 1652. § 6001. "Who are Citizens. (See U. S. C. 14,1.) (A) All citizens of the United States resident in the state are, in a few states, declared citizens of the state : Vt. 61 ; Ky. 14,1,1 ; Cal. 51 ; Ga. 44,5017. (B) All persons born in the State and residing ■within it are such citizens : Vt. ; Ct. 2,1,1 ; Va. 4,1 ; Cal. ALIENS AND RESIDENTS. 657 (C) All persons who have become citizens under the constitution and laws : Vt. So, all aliens naturalized under United States laws and resideut in the state are citizens: Va. 4,1. (D) AU persons born without the State to citizens of the State who are temporarily absent therefrom : Ct. So, if the father, or, if he be dead, the mother, is a citizen : Va. Except children of tran- sient aliens : Cal. ; and of alien public ministers and consuls : Cal. (E) All persons beiu'j- in or coming into and locating in the State with intent t(» remain and reside permanently as citi- zens : Ct., Va. Except •aMghs,: Ct., Va. ; paupers: Ct. 5 fugitives from justice: Ct. § 6002. Expatriation. Allegiance (see Glossary) may be renounced by a change of residence : Ct. 2,1,1 ; Va. 4,2 ; Ky. 14,2,1 ; Cal. 56 ; Ga. 46. The person must also renounce by deed or declaration in court, and depart with in- tention in good faith to remain absent from the State : Va., Ky., Ga. When any citizen of the State resides elsewhere, and in good faith becomes a citizen of some other state or country, he is not deemed a citizen of the State : Va. 4,3 ; Ky 14,2,2. But no such acts of expatriation have any effect if done while the State or the United States is at war with a foreign power : Va. 4,4 ; Ky. 14,2,3 ; Ga. The declaration or avowal of such intention, accompanied by actual removal, is held to be a renunciation of citizenship : Ga. But until citizenship elsewhere is thus acquired the person continues a citizen of the State and the United States : Ga. 47. § 6003. Renaturalization. A person once expatriated who has acquired citizenship in a fureign country, and liis descendants going with him for purpose of residence, can be citizens of the home state again only in the manner and under the rules which apply to other foreigners : Ga. 48. § 6004. General Rights. Among the rights of citizens are the enjoyment of personal security, of personal liberty, private property and the disposition thereof, the elective franchise, the right to hold office unless disqualified by the constitution and laws, to appeal to the courts, to testify as a witness, to perform any civil function, and to keep and bear anns (compare Art. 1) : Ga. 1654. All citizens are entitled to exercise all their rights as such, unless specially prohibited by law : Ga. 1655. § 6005. Persons Unborn, but conceived, are deemed existing persons so far as necessary for their interests in the event of their subsequent birth : Cal, 5029 ; Dak. Civ. C. 12. Children born dead are considered as if they had never been born or conceived. Children in the mother's womb are considered, in whatever relates to themselves, as if they were already born; thus the inheritances which devolve to them before their birth, and which may belong to them, are kept for them, and curators are assigned to take care of their estates for their benefit. Posthumous children are those who are born after the death of their father : La. 28-30. Art. 601. Aliens and Residents. § 6010. Definitions. Aliens are the subjects of foreign governments not naturalized under the laws of the United States : Ga. 1660. Any person whose fothcr or mother at the time of his birth was a citizen, though born out of the United States, may take and hold real and personal estate by devise, descent, or purchase : Ky. J4,2,.3. § 6011. Denizens. Citizens of other states in the State have the same rights and duties as a citizen not an elector : Cal. 60 ; Ga. 1659. So as to rights in the courts : Vt. 690 ; Mo. 3119 ; Ga." 1662. Jurisdiction of Persons. It is declared, in Georgia, that the jurisdiction of the State and its laws extends to all citizens of the State, all denizens, and all temporary sojourners within its limits : Ga. 21 . 42 658 OF PERSONS. So, in Louisiana, the law is obligatory upon all inhabitants of the State indiscriminately. The ftjreigner while residing in the State and his property within its limits are subject to the laws of the State : La. 9. Note. — " But only so long as the like privilege is extended to citizens of the State by the state of such person's residence. § 6012. General Rights of Aliens. The laws of Texas provide (A) that an alien shall have in the State tiie same rights as are or may be accorded to United States citizens by the laws of the nation to which the alien belongs or by treaty : Tex. 9. (B) Every persoa while in the State is subject to its jurisdiction and entitled to its protection: Ct. 2,1,1; Cal. 54. See also § 6011. (C) Aliens the subjects of governments at peace with the United States are entitled to all the rights of citizens of other states resident in the State : Ga. 166L (D) So, as to suits in the courts, so long as the like privilege is extended, etc. : Ga. 1662. Aliens never have the rights of franchise and office-holding. See in Part IIL, Elections. They are not generally bound to militia or jury duty. § 6013. Rights of Aliens as to Property. (Compare §§ 102,1104.) (a) In most of the states, there is a general provision that aliens, being natural persons, resident or not, may take and hold real and personal property by purchase, de- scent, or devise, and dispose of, sell, devise, or transmit by descent or intestate distribution the same, in like manner, in all respects as a native citizen : Mass. 126,1; Me. 73,2; E.I. 172,6; Pa. Aliens, IQ ,11 ; 1-2 and 15; 0.4173; Ind. 2967 ; 111. 6,1-2 ; Mich. 5775 ; Wis. 2200 ; lo. 1908 ; Minn. 75,41 ; :N'eb. 1,73,54; KC. 7; Tenn. 2804; Mo. 325; Ark. 233; Cal." 5671,6404; Ore. 17,35; Nev.* 1879,43,1; Col. 61; Wash. 2419; Dak. Civ. C. 170,794; S.C. 1768,1847; Ala. 2860 ; Miss. 1230 ; Fla. 92,7 and 14 ; N.M. 2746. (B) But so, in other states, only alien friends :" N.J. Aliens, 1 ; Pa. ib. 7 and 9; Md. 45,8; Va. 4,18 ; W.Va. 3,1-2 ;' 1882,56 ; Ga. 1661. And so, in Pennsylvania, '^ nothing herein is to prevent the sequestration of any real or per- sonal estate of an alien during a war between the United States and the state of whicli he is a subject or a citizen : " Pa. ib. 3. (C) And so, in a few others, only alien residents: N.H. 135,16; Ct. 2,1,4; Ind. 2915. So, also, in Connecticut, Frenchmen, whether resident or not, so long as France accords United States citizens corresponding rights. Exceptions. But in several, aliens non-resident may hold real estate for the purpose, if actually so used, (1) of mining : Ct. 2,1,5 ; Ariz. 1885,31 ; (2) of quarrying : Ct. ; (3) for manufacturing, commercial, agricultural, or grazing pur- poses ; but not more than 320 acres : Ariz. Special Cases. In New York, there are many other laws in force giving simi- lar privileges to aliens under special circumstances ; see jST.Y. 1798,72 ; 1802,49 ; 1804,109 ; 1805,25 ; 1807,123 ; 1808,175 ; 1819,25 ; 1830,171 ; 1843,47 ; 1845,115 ; 1857,576 ; 1868,513. And in many states, there are statutes validating convey- ances made to and descents from aliens before a certain date. And any claim of the State to such alien's estate, by escheat or otherwise, is discharged : N.H. 135,17. And specially, aliens may, in several, receive and enforce liens, by mortgage or other- wise, on real estate in the State: N.J.'^ ib. 4-5 ; Ga. 1663. So, in New Yorli ; but only as to mortgages on real estate sold by him and taken for the purchase-money : N.Y. 2,1,1,19. Aliens who become citizens before process of escheat is actually commenced, and their heirs, purchasers, or devisees, if they die seized before such process, such heirs, etc., being citizens, may hold lands purchased or acquired by them free of escheat : Ky. 14,3,2. ALIENS AND RESIDENTS. 659 (D) In others still, an alien resident, having made declaration according to law of his intention to become a citizen, may take, inherit, hold, or convey real estate, and upon his decease it will descend as if he were a citizen : N.Y. 2,1,1,15-lG ; 1845,115,7 and 9-10 ; Pa. ib. 4-6,8 ; Ind. 1885,51 ; Del. 81,1 ; Tex. 10. But such privileges only last for six years after such declaration : N.Y. And such ahen has no power to lease land : N.Y. And if the widow or kindred of such person or any of them do not reside within the United States, they cannot inherit such estate, and the effect is as if they were dead : Del. In New York, if such alien die within such six years, his heirs take hy descent as if he were a citizen : N.Y. ib. 18. In two states, aliens may take and hold any property, real and personal, in the state by devise or descent from any alien or citizen in the same manner in which citizens of the United States may do within such ahen's country : Ky. 14,3; Feb. 23,1874; Tex. lt)58. NoTKS. — « A non-resident alien must, liowever, appear and make claim within five years. * Ex- cept subjects of China. '' i. e., the subjects of a country at peace with the United States. '^ Of alien friends only. § 6014. As to Personalty. An alien friend may take and hold personal property, except chattels real, and, if resident, may hold lands for residence or business for a term not exceeding twenty-one years : Ky. 14,2,4. § 6015. Successions, (a) In many states, by the general provisions of § 6013, aliens succeed as if they were citizens. So, in several states, specially, alien heirs may take real estate to the exclusion of more remote native heirs, or of the state by escheat : Me. 73,2; N.Y." 1845,115,4 ; Mon. Prob. C. 553 ; Ala. 2862. So, the alienage of descendants does not invalidate their title to real estate descend- ing to them : N.J.* AUeiis, 3 ; Del.= 81,1 ; W.Va. 3,1 ; Teim. 2805-6 ; Col. 1044 ; Wy. 42,6 ; Uta. 1884,44,2,20; Fla. 92,14; N.M. 2746. In two states, any alien to whom land may descend or be devised has nine years (in Ken- tucky, eight) in which he may either become a citizen and take possession, or else sell the same before the land shall be forfeited or escheat : Ky. 14,2,5 ; Tex. 1658. But no non-resident alien can take by succession unless he appears and makes claim within five years of the intestate's death : Mon. Prob. C. 553 ; Uta. But in Tennessee, when any resident dies possessed of real or personal property, and the next of kin are aliens, it descends (1) to the brothers and sisters of the whole blood and their issue, (2) to the father and mother equally, (3) in equal moieties to the nearest heirs of the father and mother in equal degree equally : Tenn. 2807. Descent around Aliens. In Alabama, it is enacted that when any person dies leaving relatives, citizens of the United States, capable of inheriting estate, who, by the rule of the common law, cannot inherit because there are other and nearer kindred who are aliens or otherwise incapable of holding land in the State, the estate shall descend to such of the first-mentioned relatives as would be entitled, were there no other relatives whatever: Ala. 2260 (but see C. Ala., Art. 1,36, § 102 of this book). In Georgia, when the heirs or devisees of land are incapable of holding title to lands, the legal representative of the estate is to sell the lands and pay over the proceeds to such devisees or next of kin : Ga. 2670. Successions to Personalty, (a) In many states, by the general provisions in §§ 6013,6014, aliens take like citizens. And so, specially, in a few, alien next of kin (or the husband or widow) may take personalty by distribi;tion, to the exclusion of more remote native heirs or of the State ("as if they were citizens :" Del., Va.) : Me. 73,2 ; 111. 6,2; Del. 81,5 ; Va. 119,10; W.Va. 66,9 ; Ala. 2862 ; Fla. 92,14. • Q(30 OF PERSONS. (B) Aliens inherit their distributive share of personal estate as if they were citizens : Va. 119,10 ; W.Va. 1882,94,9 ; Ky. 31,11 ; Tenn. 2805. But see § 6016. jf QXEs. " But if such heir be a male of age, he will not take unless he be a citizen of the United States or unless he file a declaration of intention as before ; N.Y. ^ Of alien friends only ; see § 6013, note ". <^ Of alien residents only ; see § 6013. § 6016. Alienism of Ancestors, etc. By the laws of most of the states, no title to real estate shall be invalid on account of the alienage of a former owner : Mass. 126,1 ; N.Y. 2,1,1,9 ; 1868,513,1 ; 1872,141,1 ; 358,1 ; 1875,361,1 ; 1877, 111,1-2 ; Pa. Aliens, 12-18 ; Escheats, 32 ; Ind. 2918 ; Mich. 5776 ; Wis. 2201 ; lo. 1909; Minn. 75,41; Ore. 17,36; S.C. 1847,1768. So, in many, specially of descent, when a title to real estate is claimed by descent by a person capable at the time of inheriting, it shall be no bar that the father, mother, or other ancestor through whom the descent is derived was an alien : N.Y. 2,2,22 ; N.J. Aliens, 3 ; Descent, 12 ; 0. 4173 ; Del. 81,4; Va. 119,4; W.Va. 66,4; Ky. 31,4; Mo. 2168; Ark. 2527; Tex. 1658; Cal. 6404; Dak. Civ. C. 794; Mon. Prob. C. 553; Uta. 1884,44,2,20; S.C. ; ria. 92,8. So, all purchasers of land made by aliens before the acts passed in $ 6013 are as valid as if inade thereafter : N.J. Aliens, 2. § 6017. "Wives of Aliens, etc. (A) The widow of any alien, whether she be alien or not, is, in many states, entitled to dower in his land as in ordinary cases : N.Y. 1845,115,3 ; 2,1,3,2 ; 111. 41,2 (or husband) ; Ark. 2572. So, a woman being an alien shall not on that account be barred of her dower or intestate interest (but any woman residing out of this state shall be entitled to dower only of land of her husband, being in this state, of which he died seized : Mich., Wis., Neb.): Ind. 2507; Mich. 5753 ; Wis. 2160; Neb. 1,23,20; Ore. 17,21. So, of the wife of any resident alien (or Frenchman, in Connecticut) ($ 6013), and she may also take by devise or inheritance : Ct. 2,1,4 ; N.Y. 1845,115,2. So, also, she is entitled to the estate in lieu of dower or intestate share : N.Y. 1845, 115,7; Io."2442; Ark. 233. So, in others, to her share of the personal estate : lo. ; Ark. 234. (B) And in several, any alien woman marrying a citizen is entitled to dower as if she were a citizen: N.Y. 1845,115,3; N.J. Doiver, 1 ; Ky. 14,1,3; S.C. 1848. And she may take by descent, devise, or purchase, real or personal estate, although an alien : Ky. And a woman citizen marrying an alien and residing abroad, her real property descends to her lawful descendants as in ordinary cases : N.Y. 1872,120,1 ; Ind. 2916. And she may hold, convey, purchase, and inherit real estate : Ind. And she may convey or devise such estate according to the laws of the State : Mo. 326. The widow of a citizen of the United States who was an alien when she married him is entitled to dower : Me. 103,5. A woman being an alien resident may take by marriage contract : N.Y. 1845,115,8. Note. — <• Except as against a purchaser from the decedent ; lo. § 6018. Devises of Real Property to aliens not authorized to hold real estate are void ; and the interest devised descends to the heirs, or, if none, to the residuary devisee : N.Y. 2,6,1,4. § 6019. Foreign Corporations may generally bring suit in the courts of the State under the corporate name. See Parts III. and IV. DOMICILE. 661 Art. 603. Domicile. § 6030. Definitions. Every person has, in law, a residence ; in detennining it, the fol- lowing rules are observed, viz. : (A) (1) it is the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he returns in seasons of repose ; (2) there can only be one residence ; (3) a residence cannot be lost until another is gained ; (4) the residence of the father during his life, and after his death the residence of the mother, while she remains unmarried, is the residence of the unmarried minor child ; (5) the residence of the husband is the residence of the wife ; (6) the residence of an unmamed minor who has a parent living cannot be changed by either his omu act or that of his guardian ; (7) the residence can be clianged only by the union of act and intent : Cal. 52. (B) The town in which the family of a person resides, if he has one, is the place of his residence : Vt. 63 ; Ga. I(i90 ; if he has none, the place where he generally lodges : Ga. If a person resides indifferently in two places, he may elect which shall be his domicile : Ga. 1691. The domicile of a married woman is that of her husband, except in case of voluntary separation, or of a pending application for divorce, in which case it is determined as if she were sole : Ga. 1692. A minor's domicile is that of his father (or master or employer if apprenticed, or of his own choice if emancipated) ; or guardian, if the father be dead ; or mother, if no guardian ; or employer, or of his own choice : Ga. 1693. Lunatics, etc., have the domicile of their guardian : Ga. 1694. DoTnicile may be changed by an actual change of residence coupled with an avowed inten- tion of remaining : Ga. 1695. A person not sui juris cannot by his own act change his domicile ; nor can a guardian change the domicile of his ward by change of his own or otherwise so as to alter the rules of succession or inheritance of third persons : Ga. 1696. § 6031. Civil La'w. The domicile of each citizen is in the parish wherein he has his principal establisliment. The principal establishment is that in which he makes his habitual residence ; if he resides alternately in several places, and nearly as much in one as in another, and has not declared his intention in the manner hereafter prescribed, any one of the said places where he resides may be considered as his principal establishment, at the option of the persons whose interests are thereby aflFected. A married woman has no other domicile than that of her husband ; the domicile of a minor not emancipated is that of his father, mother, or tutor ; a person of full age, under interdic- tion, has his domicile with his curator. Persons who have attained the age of majority, and who labor constantly with, or serve others, have the same domicile as those with whom they labor or serve, provided they reside with them. A change of domicile from one parish to another is produced by the act of residing in another parish, combined with the intention of making one's principal establishment there. This intention is proved by an express declaration of it before the recorders of the parishes from which and to which he shall intend to remove. This declaration is made in writing, is signed by the party making it, and registered by the recorder. In case this declaration is not made, the proof of this intention shall depend upon circum- stances. A citizen accepting a temporary and precarious office, or one from which he may be removed at pleasure, retains his ancient domicile, if he has not evinced a contrary intention. An acceptance of an office conferred for life or during good behavior, implies an immediate transfer of the domicile of the officer to the parish in which he is required to exercise his functions. But public officers, who perform duties throughout the State or in a district composed of several parishes, preserve the domicile they had before their appointment, unless they manifest a contrary intention : La. 38-45. Residence once acquired shall not be forfeited by absence on business of the State or of the United States, but a voluntary absence of two years from tlie State, or the acquisition of resi- dence in any other state of this Union, or elsewhere, shall forfeit a residence within this state : La. 46 ; D. 1202. 662 OF PERSONS. Art. 605. Race Distinctions. § 6050. • Persons of Color. (See Glossary, Color.) This phrase is, in several states, defined to include (1) all persons having an eighth or more negro or African blood : Ga. 45 ; Fla. 72,7. So, one fourth or more : Va. 103,2. See also § 6112. (2) All persons descended from a negro ancestor, male or female, to the third generation inclusive, although one ancestor of each generation were white : Ala. 2 j Tenn. 3291. § 6051. Marriage. All marriages of colored persons are valid (1) if made before 1867 by a person having authority (§ 6130) : Md. 51,9-10. All marriage laws apply to colored persons as well as white : Fla. 149,6. (2) When negroes have been married de facto before 1865 (or 1866 : W.Va., Ark., Ga., Fla., or while in slavery : Tenn.) ; they are deemed husband and wife, and their children legitimate, although there was never any marriage ceremony : Va. 103,4 ; 104,13 ; W.Va. 121,8 ; 1882,58 ; Tenn. 3285 ; 3303 ; Mo. 2173 ; Ark. 4609 ; Tex. 2846 (1870); S.C. 2030-1 (1872); Ga. 1667; Fla. 149,7 (1866), D.C. 724-5 (1866). Tlie colored persons so de facto married must, however, make proof and record thereof before a justice of the peace : Md. 51,10. (3) When persons of color, formei-ly held as slaves, have cohabited as husband and wife, they are required to appear before a justice of the peace and be married ; they may then give the names of their children; and such names, and the fact of marriage, are thereupon to be recorded : Mo. 3275-7. (4) But in Texas, such persons, both of whom were precluded by the laws of bondage from marriage, who continued to live together until the death of one of them, or were so hving together on Aug. 15, 1870, are considered legally married witliout any ceremony ; Tex. 2846. So, persons formerly slaves " who have complied with the provisions of 1866, c. 40, $ 5," N.C. laws, are deemed to have been lawfully married : N.C. 1842. (5) Indians contracting marriages according to the Indian custom, and cohabiting as husband and wife, are lawfully married : Dak. Civ. C. 42. § 6052. Legitimacy. So, in Missouri, all children of one mother who was a slave at their birth are declared lawful brothers and sisters for the purposes of descent, etc. (Art. 310) : Mo. 2173. Every colored child born before March 9, 1866, is the legitimate child of its mother ; and of his father, if the parents were living together as husband and wife, or in what was regarded as a state of wedlock : Ga. 1669. See also $ 6051. The children of such marriages as are there mentioned are, of course, legitimate. § 6053. Slavery. (See Art. 3). " Neither slavery nor involuntary servitude shall exist in the state : " Va. 103,1. Except (1) as a punishment for crime ; (2) lawful imprisonment : Va. All acts relating to slaves and slavery are repealed : Va. § 6054. Civil Rights. There are laws in most states providing that no citizen of the state shall, by reason of race, color, or previous condition of servitude, be excepted or excluded from the full and equal enjoyment of the accommodations of (1) inns, hotels, restaurants, common carriers, or conveyances : Mass. 1885, 316; E.I. 1885,508 ; N.Y. 1873,186,1; 1881,400,1; KJ. 1884,219,1; 0. 1884, p. 15 and p. 90; Ind. 1885,47; 111. 1885, p. 64; Mich. 1885,130; lo. 1884,105; Minn. 1885,224 ; Ark. 521,523 ; Col. 1885, p. 132 ; S.C. 2604 ; Ga. 4586 ; Fla. 19,2 ; (2) theatres or other places of amusement : Mass. ; E.I. ; N.Y. ; N.J. ; 0. ; Ind.; 111.; Mich.; lo. ; Minn.; Ark 527; Col.; S.C. 2605; Fla.; (3) public schools, etc. : Ark. 529 ; Fla. 19,2 ; (4) public meetings : Mass. MEN AND WOMEN. 663 (5) Saloons or liquor shops : Ark. 525 ; (6) cemetery associations : N.Y. ; (7) he may not, under penalty, be deprived of ''any rights, privileges, or immunities secured by the Con- stitution and laws of the state and the United States : " Ct. 1884,86. Every discrimiuatiou against any citizen on account of color by the use of the word " white " in any law or ordinance is repealed : ]S^. Y. ib. 3 ; Fla. 19,4. So, specially, (1) all laws in respect to crimes and punishments apply to negroes and Indians as well as whites (see Part V.) : Va. 103,3. So, (2) all laws concerning wit- nesses and evidence (see Part IV.) : Va. 103,5; W.Va. 1882,100; 85,24; Ky. 37,28; D.C. 879; (3) laws concerning jurors : R.I. ; N.J. ib. 3; 0. ib. 3; Ind. ib. 3 ; Mich. ; see in Part IV. (4) Negroes have the same rights upon railroads as whites, and may not be placed in special cars, compartments, etc. : Pa. Railroads, 104; S.C. 1337 ; (5) negroes, etc., have the same rights in the courts: S.C. 2168; (G) and geiiei'ally the same political and civil rights : Fla. 19,1. For other states, see in Parts I. and V. There are frequently provisions for separate schools for colored children. See in Part III. § 6055. Property. Gifts and conveyances made to slaves and followed by ten years' pos- session before March 9, 1870, are declared valid : N.C. 1278. § 6056. Labor. In two states, no Chinaman or Mongolian can be employed in pub- lic works or in or about state or city buildings or institutions or grounds : Ore. 1878, p. 9 ; Nev. 1879,73,1-2 ; and no right of way or charter or other privilege for the con- struction of any public works by any railroad or other corporation can be granted except on the express condition that they shall employ no such Chinamen, etc. ; any violation of this works a forfeiture of the charter : Nev. ib. 3 ; and in Nevada, the immigration of [Chinamen] bound by contract to labor for a term of years is forbidden ; no such person can collect and no person or corporation can pay them wages, under penalty for misdemeanor : Nev. 1879,99 ; see also § 5286. No person or parties engaged in a business or calling which requires a license or charter, under state, municipal, or federal authority, shall discriminate between persons on account of race or color who make lawful application for the benefit of such business, etc. : S.C. 1369. § 6057. Descent. In Florida, when upon the death of a person of color there are per- sons in being who would inherit his real or personal property under the laws of descent but for the legal incapacity of such persons of color to contract marriage in a state of slavery, and the estate would otherwise escheat, all right and interest of the State is vested in and waived in favor of those persons who would have inherited if the said parties had been competent to con- tract marriage: Fla. 92,15. And the fact that such parties have failed to obtain a license or be married according to the forms of law shall in no case affect the operation of this section, provided the parties were known as husband and wife : Fla. 92,16. So, persons inherit who were formerly slaves, although slaves at the death of the intestate : Mo. 2172. § 6058. Indians, resident in the State, have the same rights and duties as other persons, except (1) they cannot vote nor hold office : Dak. Civ. C. 26 ; (2) they cannot, as a general thing, grant, lease, or incumber Indian lands: Ct. 2,2,4; N.Y. 1813,29; 2,1,1,11-12; Dak. But they may hold and convey other lands: N.Y. 1843,87,4; they have the same right to sue, etc., in the courts, as other persons : Mich. 7309. Art. 606. Men and Women. § 6060. Disabilities of Women. Females are not entitled to the privilege of the elec- tive franchise, nor can they hold any civil ofBce or perform any civil functions unless specially authorized by law, nor are they required to discharge any military, jury, police, patrol, or road duty : Ga. 1656. 664 MARRIAGE. Laws, on account of the difference of sexes, have established between men and women essential diiferences with respect to their civil, social, and political rights. Men are capable of all kinds of engagements and functions, unless disqualified by reasons and causes applying to particular individuals. Women cannot be appointed to any public office, nor perform any civil functions, except those which the law specially declares them capable of exercising. Widows and unmarried women of age may bind themselves as sureties or indorsers for other persons in the same manner and with the same validity as men who are of full age : La. 24-25. § 6061. Capabilities of "Women. In Illinois, there is a law that no person shall be de- barred or precluded from any occupation, employment, or profession (except military) on account of sex : 111. 48,3. So, in many states, women may practise law : 0. 565. See also in Part III., Attorneys. § 6062. OflBce-Holding. But $ 6061 does not extend or modify the right of women to hold office : 111. 48,3. Certain offices, such as recorder of deeds, etc., may, in many states, be held by women. § 6063. Other Limitations. So, the provisions of $ 6061 do not enable or require women (1) to serve on juries : 111. 48,4. (2) Or to labor in the streets : 111. § 6064. Schools. Many states have statutes providing that any school office must have the same salary when held by a woman as by a man ; see in Part III. And many others, that women may hold any office under the school law: Ind. 4540; Cal. 841 j 1873-4,356. See iu Part III. CHAPTER IL — MARRIAGE. Art. 610. General Principles. § 6100. Note. Throughout this chapter the reader should remember that the law treated of is that now existing only. § 6101. Civil Contract. Marriage, so far as its validity in law is concerned, is declared, in many states, to be a civil contract, to which the consent of parties, capable in law of contracting, shall be essential : N.Y. 2,8,1,1 ; Ind. 5324 ; Mich. 6210; Wis. 2328 ; lo. 2185; Minn. 61,1 ; Kan. 61,1 ; Neb. 1,52,1 ; Mo. 3264; Ark. 4590 ; Cal. 5055 ; Ore. 34,1 ; Nev. 195 ; Col. 2247 ; Wash. 2380 ; Dak. Civ. C. 34 ; Ida. 1876-7, p. 24, § 1 ; Mon. G. L. 854 ; Wy. 81,1 ; La. 86 ; N.M. 978 ; Ariz. 1891. So, in Georgia, to constitute a valid marriage there must be (1 ) parties able to contract ; (2) an actual contract ; (3) consummation according to law : Ga. 1698. So, in others, consent alone is not sufficient without a solemnization or mutual as- sumption of marital rights, duties, or obligations : Cal., Dak., Ida. Consent and subsequent consummation may be manifested in any form and proved under the general rules of evidence : Cal. 5057 ; Dak. Civ. C. 35 ; Ida. ib. 3. The consent to a marriage must be one commencing instantly, and not to an agreement to marry afterwards : Dak. Civ. C. 37. But the general provisions of the code relating to contracts, and the capacity of persons to enter into them, have no application to the contract of marriage : Dak. Civ. C. 43. Louisiana Law. The laws prescribe, — 1. The manner of contracting and celebrating marriages. 2. The legal effects and consequences of marriage. 3. The manner in which marriages may be dissolved : La. 87. OF THE PARTIES. 665 Such marriages only are recognized by law as are contracted and solemnized according to the rules which it prescribes : La. 88. Marriage is a contract intended in its origin to endure until the death of one of the contract- ing parties ; yet this contract may be dissolved before the decease of either of the married per- sons for causes determined by law : La. 89. As the law considers marriage in no other view than that of a civil contract, it sanctions all those marriages where the parties, at the time of making them, were, — 1. Willing to contract. 2. Able to contract. 3. Did contract pursuant to the forms and solemnities prescribed by law : La. 90. No marriage is valid to which the parties have not freely consented. Consent is not free, — 1. When given to a ravisher, unless it has been given by the party ravished after she has been restored to the enjoyment of liberty. 2. When it is extorted by violence. 3. W^hen there is a mistake respecting the person whom one of the parties intended to marry : La. 9L § 6102. Marriages Encouraged. By the laws of two states, all marriages (" not forbidden by the law of God : " Pa.) are to be encouraged : Pa. Marriage, 1 ; Ga. 1697. § 6103. Restraint of Marriage. Every effort to restrain or discourage marriage by con- tract, condition, limitation, or other\nse, is invalid and void. Prohibithig marriage to a par- ticular person or persons, or before a certain reasonable age, or other prudential provision, looking only to the interest of the person to be benefited, and not in general restraint of mar- riage, will be allowed and held valid : Ga. 1697. § 6104. Contracts to Marry. Neither party to such a contract is bound by a promise made in iguorauce of the other's want of personal chastity ; and either is released therefrom by unchaste conduct on the part of the other, unless both parties participate therein : Cal. 5062 ; Dak. Civ. C 44. § 6105. Of the Dissolution of Marriage. The bond of matrimony is dissolved, — 1. By the death of the husband or wife. 2. By a divorce legally obtained. 3. Whenever the marriage is declared null and void for one of the causes mentioned in the fourth chapter of this title"(Art. 61.5), or when another marriage is contracted, on account of absence, when authorized by law. Separation from bed and board does not dissolve the bond of matrimony, since the separated husband and wife are not at liberty to marry again; but it puts an end to their conjugal co- habitation, and to the common concerns which existed between them : La. 136. § 6106. Re-marriage. The wife cannot marry again until ten months after the dissolution of the preceding marriage : La. 137. Art. 611. Of the Parties. § 6110. Age of Consent. (1) In several states, there being nothing said, the age of consent remains as at common law, — fourteen in the male, twelve in the female ; and it is so expressed in N.H. 180,14 ; Va. 105,3 ; W.Va. 69,2 ; Ky. 52,1,2 ; La. 92. (2) But in others, the laws declare the age to be sixteen in the male, fourteen in the female : To. 2186 ; N.C. 1083,1809; Tex. 2839. (3) Seventeen in the male, fourteen in the female : 111. 89,3 ; Ark. 4591 ; Ga. 1699 ; Ala. 2672. (4) Eighteen in the male, fifteen in the female : Wis. 2329 ; Minn. 61,2 ; Cal. 5056 ; Ore. 34,1 ; Dak. Civ. C. 36 ; N.M. 993. (5) Eighteen in the male, sixteen in the female : 0. 6384 ; Ind. 5324 ; Mich. 6209 ; Neb. 1,52,2 ; Nev. 196 ; Ida. ib. 2 ; Wy. 81,2. (6) Twenty-one in the 666 MARRIAGE. male, eighteen in the female : Wash. 2380 ; Mon. G. L. 854. (7) Twenty-one in the male, fourteen in the female : N.Y. Civ. C. 1742. But uiales under twenty-one, and females under eighteen, must, first obtain the consent of their fathers, mothers, or guardians : Nev. See also § 6122. So of females under sixteen : Md. 72,111 ; S.C. 2585. And it seems the marriages of minors above the age of consent, but not of age, are not valid unless assented to in writing by the parent, guardian, etc. (§ 6122) : Nev. 196. But it seems marriages under the age of consent may be made if the parent, etc., consent, in some states ; see ^ 6122,6134. If any female between twelve and fourteen marry without the consent of her father, or guardian, or mother, the court may commit her estate to a receiver, who shall hold it during coverture, (1) and after the termination thereof deliver it to the possession of such female and her heirs other than the husband : Va. 104,12 ; or, (2) at her majority dehver it to her as her sole and separate property : W.Va. 121,12. § 6111. Prohibited Degrees. No man, and conversely, no woman, mutatis mutandis, may marry, in most states, (1) his lineal ancestor or descendant, or his brother, sister, of the half or whole blood : N.H. 180,1-2 ; Mass. 145,1-2 ; Me. 59,1 ; Vt. 2306-7 ; R.I. 163,1-2 ; Ct. 14,1,1 ; N.Y. 2,8,1,3 ; N.J. Marriages, 1 ; Pa. Crimes, 54 ; 0. 6384; Ind. 5324 ; 111. 89,1 ; Mich. 6211-2 ; Wis. 2330 ; lo. 4030 ; Minn. 61,3 ; Kan. 61,2 ; Neb. 1,52,3 ; Md. 51,1-2 ; Del. 74,1 ; Va. 104, 9-10; W.Va. 121,9-10; N.C. 1810-1 ; Ky. 52,1,1; Tenn. 3290 ; Mo. 3265 ; Ark. 4592 ; Tex. P. C. 330-1 ; Cal. 5059 ; Ore. 34,2 ; Nev. 196 ; Col. 2248 ; Wash. 949 ; Dak. Civ. C. 38 ; Ida. ih. 5 ; Mon. G. L. 855 ; Wy. 35,111 ; 1882,40,1 ; S.C. 2026 ; Ala. 2670-1 ; Miss. 1145-6; La. 94,95; N.M. 992; Ariz. 1892. (2) Nor can there be a marriage between a man and his niece, or a woman and her nephew, by blood, and conversely : N.H., Mass., Me., Vt., R.I., Ct., N.J., Pa., O., Ind., Ill, Mich., Wis., lo., Minn., Kan., Neb., Md.,« Del., Va., W.Va., N.C, Ky., Tenn., Mo., Ark., Tex., Cal, Ore., Nev., Col., Wash., Dak., Ida., Mon., Wy., S.C. Ala., Miss., N.M., Ariz. (3) Nor, in two states, can a man marry the daughter of his brother's or sister's child, or a woman the son of her brother's or sister's child : Del., Ky. (4) Nor, in several, can a man marry his first cousin by blood : N.H., 0., Ind., Kan., Ark., Nov., Wash., Dak., Mon., Wy. (5) So, in four, no marriage can be contracted " by parties nearer of kin than first cousins," computing by the rule of the civil law ; whether of the half or whole blood : Wis,, Minn., N.C, Ore. (6) So, not by persons nearer of kin than second cousins : 0., Ind., Nev., Wash., Mon. (7) So, " not within the Levitical degrees : " Ga. 4533. And so, probably, in Florida : Pla. 59,8. These prohibited degrees of consanguinity apply whether either person or his parent be legitimate or not : N.Y., 111., Kan., Neb., Ky., Mo., Ark., Cal., Col., Dak., Ida., Wy., Ala., La., N.M., Ariz. But Jews may contract vaUd marriages, though so related, within the degrees allowed by their religion : R.I. 163,4. Affinity. A man may not, in many states, marry (1) his father's widow, nor a woman her mother's husband ; and inversely, a man may not marry liis wife's daughter, nor a woman her husband's son : N.H. ; Mass. ; Me. ; Vt. ; Pt.I. ; Ct. ; N.J. ; Pa. ; Mich. ; lo. ; Md. ; Del. ; Va. ; W.Va. ; Ky. ; Tenn. ; Tex. ; Wash. ; S.C ; Ga. 1700 ; Ala. ; Miss. A man may not marry (2) his grandfather's widow, nor a woman her grand- mother's husband ; and inversely, a man may not marry his wife's granddaughter, etc. : Mass., Me., Vt., EI., N.J., Pa., Mich., lo., Md., Del., Va., W.Va., Ky., Tenn., Tex., S.C, Ga., Ala. OF THE PARTIES. 667 A man may not marry (3) his son's widow, nor a woman her daughter's husband ; nor, inversely, a woman her husband's father, etc., or a man his mother-in-law : N.H., Mass., Me., Vt., R.I., N.J., Pa., Mich., lo., Md., Del, Va., W.Va., Ky., Teun., Wash., S.C, Ga., Ala. ^"or (4) his grandson's widow, nor a woman her granddaughter's hus- band, and inversely : N.H., Mass., Me., Vt., R.I., N.J., Mich., Md., Del., Ky., Tenn., Wash., S.C. In two states, a man caunot marry his wife's step-daughter, nor a woman her husband's stop-son : Va., W.Va. lu the same, a woman cannot marry her niece's husband ; but the pro- vision is not, except in West Virginia, extended to the case of a man marrying his nephew's widow : Va., W.Va. A man may not marry his uncle's widow : Ala. In all these cases of affinity the prohibition continues, notwithstanding the dissolu- tion by death or divorce of the marriage on which such relationship was founded, unless the marriage was originally void (§ 6x12) ; Mass. 145,3 ; Vt. 2308 ; Va. 104,11 ; W.Va. 121,11; Ky. " All other impediments on account of relationship or affinity are abohshed :" La. 96. Note. — " Since 1860 only : Md. 51,3. § 6112. Marriages Void, (a) All marriages contracted contrary to the pro- visions of § 6111 are void ab initio: N.H.'' 182,1 ; 180,3 ; Mass." 145,7 ; Me.'' 60,1 ; Vt. 2346 ; E.I. 163,3 ; Ct. 14,1,1 ; N.Y. 2,8,1,3 ; Pa.'' Divorce, 2 ; Ind. 1024 ; 111. 89.1 ; Mich."' * 6223 ; 1883,24 ; Wis.'' 2349 ; lo. 2201 ; Minn." 61,3 ; 62,1 ; Kan. 61.2 ; Neb. 1,25,1; Md. 51,1 ; Del. 74,1 ; N.C. 1810 ; Ky. 52,1,1 ; Mo. 3265 ; Ark. 4592; Cal. 5059 ; Ore.« Civ. C. 486 ; Nev. 211 ; Col. 2248 ; Wash. 949 ; Dak. Civ. C. 38; Ida. ih. 5; Mon. G. L. 855; Wy. 35,111; 1882,40,1; Ga. 1699,4533; Ala." 2670 ; 2673 ; Miss. 1146 ; KM.* 992,997 ; Ariz. 1892,1902. And so it would seem to be implied in all states. (b) So, in nearly all, all marriages contracted while either party has a former wife or husband living, not duly divorced according to the state law: N.H. ;"'" Mass. 145,4 and 7 ; Me. 59,3 ; 60,1 ; Vt. 2309 and 2346 ; R.I. 163,5 ; KY. 2,8,1,5 N.J. Divorce, 2 ; Pa. Divorce, 11 ; 0. ; Ind. ; Mich." 6213,6223 ; Wis." 2330,2349 lo. ; Minn. ; Neb. 1,52,3 ; Md. ; Del. 75,2 ; Va. 105,1 ; N.C. ; Ky. 52,1,2 ; Tenn, 3293 ; Mo. 3266 ; Ark. 4595 ; Cal. 5061 ; Ore." 34,2 ; Nev. ; Col. 2250 ; Wash. Dak. Civ. C. 40; Ida. ib. 6 ; Mon. ; Wy. ; S.C. 2029 ; Ga. ; Miss. 1156 ; Fla. 93,5 La. 93 ; Ariz. Except that, in a few states, if either party was five years absent, and unheard of (or reported, and believed by such person, to be dead : Cal., Dak.), and the other party married again during the lifetime of such absentee, the marriage is only void from the time a decree of court is pronounced to that effect : N.Y. ih. 6 ; Minn. 62,1 ; CaL ; Dak. ; Ida. See also § 6116. But, in Iowa, a marriage between persons either of whom has a former husband or wife living becomes valid if after such former husband's or wife's death the parties cohabit together : lo. 2201. (C) So, in several states, all marriages contracted while either party is under the age of consent (see § 6110) / Minn. 61,2 ; N.C. ;« Ky. ; Ark. ; Tex. 2839 ; Wy. ib. 2; N.M.*997; Ariz. 1903. So it would be implied in all states, except as below and in § 6113 provided. See also Art. 615. But so only when the parties separate during such nonage, and do not cohabit after- wards :^ Mass. 145,8 ; Mich. 6224 ; Va. 105,3 ; Wy. ; N.M. ; Ariz. (d) So, in many states, all marriages where one of the parties is at the time insane or an idiot :^ Mass.'' 145,5 ; Me. 59,2 ; 60,1 ; R.I. ; Ind. 5325 ; 111. 89,2 ; Mich."'* 6214; Wis.; Neb.; Va.;"-* N.C.;" Ky. ; Wy. ; S.C. 2026; Ga. 1899; Ariz. 668 MARRIAGE. (e) Or, in several, when either is physically incapable (i e., impotent) : ■^ N.J. Divorce A] Va.;"-" N.C. ;^ Ky. ; Tex." 2860 ; Ga. A void marriage, by the meaning of the word, is of course to be deemed void in any action or collateral proceeding where it may come in question ; and this is expressly en- acted in some : Vt. 2346 ; Ind. ; Mich. ; Minn. ; Va. ; N.C. ; Ore. Civ. C. 488. See, however, note ^ (f) So, in many states, all marriages between a white (1) and a negro or mu- latto (see § 6050) : Ind. ; Md.-'' 72,106 ; Del. 74,1 ; Va. 105,1 ; N.C. 1084,1284 ; Ky. ; Tenn. 3291 ; Ark. 4593 ; Cal. 50G0 ; Nev.^' 2472 ; Col.» 2248 ; S.C. 2032 ; Fla. 149,8-9 ; Ariz. 1893. (2) "And a negro :" Mo. 3265 ; (3) "and an African or descendant of Africans : " Tex. 2843; Ga. 1708; (4) "and a person having one fourth of negro blood:" Neb. ; Ore." 34,2; Miss. 1147; Fla.; (5) or, in others, one eighth: Ind. 2136,5325; Mo. 1540 ; Fla. 59,13 ; (6) to the third generation, inclusive : Md. 1884,264 ; N.C. ; Tenn. ; Ala. 4189; (7) and an Indian: N.C, Nev.,-' S.C, Ariz.; (8) and a Chinese or Mon- golian : Nev.,^ Ariz ; (9) so also all marriages between a white and a person having one fourth Chinese or Kanaka blood : Ore. Crim. C 689 ; (10) or one half Indian blood : Ore. But in Michigan, all marriages between a white person and one wholly or partially of African descent are valid in all respects : Mich. 1883,23, § 1. So, probably, in other states where the laws are silent. Clerks are forbidden to issue licenses for marriages between a white person and a MongoBan : Cal. 5069, Amt. In many cases, marriages between negroes or such persons are made a penal offence ; but qucere whether they would be void. See note •^ and in Part V. (G) So, in a few states, all marriages become void without a decree where either party is sentenced to imprisonment for life (and confined under it, in Maine) : Me. 60,1 ; N.Y. ; Mich. 6227; Wis. 2355; Ariz. 1906. And no pardon granted shall restore such party to his conjugal rights : N.Y. ih. 7; Mich. ; Wis. ; Ariz. In such case, the wife has dower as if he were dead : Wis. 2373. (H) So, in several, all marriages when the consent of either party was obtained by force or fraud, if they separate, and do not voluntarily cohabit together afterwards :-^ Mich. 6224; Ga. 1701-2 ; Wy. ; Ariz. Drunkenness, brought about by art or contrivance to induce assent, is held fraud : Ga. The other causes of nullity existing by the ancient laws are abolished : La. ] J5. Notes. — " But they are so void only if solemnized in the State ; see, however, § 6114. ^ They are void only from the time a decree is pronounced to that effect, or either party is convicted for incest ; compare § 6113 and note '^ below. " Void only when the party knew such former husband or wife to be alive. <^ But the validity of such a marriage cannot be questioned in a collateral issue, and it can only be annulled in proceedings under § 6150, instituted in the lifetime of both parties : Mass. 145,9 ; Me. ; Pa. ; compare note *. [It is difficult, then, to see how, in the two notes ** and «, such a marriage can be termed "void."] And so, in others, * no such marriage, followed b)"^ cohabitation and birth of issue, can be declared void after the death of either of the parties. ^ But compare § 6151. o But com- pare §§ 6156,6202. * Such impotency being natural or incurable. ,• " But inhabitants of that part of the State acquired from Mexico may marry according to the cu.stom of that country." i Such mar- riage is a misdemeanor in the parties ; it does not, however, appear that it is void. * But compare § 6115. § 6113. Marriages Voidable." And in the follovi^ing cases marriages may upon petition or suit (Art. 615) be decreed null and void from the beginning : (a) In several, all marriages contracted witliin the prohiliited degrees contrary to the provisions of § 6111 :<^ Va.* 105,1 ; 1879,252 ; W.Va.* 69,1. (b) In many, when either party had not at the time of marriage attained the age of consent* (§ 6110):'^ Vt.* 2349 ; N.Y.* 2,8,1,4 ; Ind.* 1025 ; Mich. 6254; Wis.* 2350 ; Io.» 2186 ; Minn.* 62,2 ; Kan. 80,648 ; Neb. 1,25,2 ; W.Va. ; * Ky.« 52, OF THE PARTIES. 669 1,5 ; Ark.* 4594 ; Cal.* 5082 ; Ore.*--'' Civ. C. 487 ; 34,3 ; N"ev.» 212 ; Wash.'' 2381 ; Dak.-^ Civ. C. 54; Ida.^ ih. 4; Wy. ih. 26 ; KM. 993 ; Ariz. 1933. But not, ill many of these, if tlie parties have voluntarily cohabited as husband and wife after attaining such age : Vt. 2350 ; N.Y. Civ. C. 1742-3 ; Mich, ; Wis. 2353 ; Minn. 62,4 ; Kan. ; Neb. ; Ky. ; Oal. ; Ore. Civ. C. 489 ; Nev. 213 ; Dak. ; Wy. ; Ariz. (C) In many, also, where either party was insane or an idiot:'' Vt.*'^ 2351, 2352,2356 ; N.Y. ;* Ind. ; ^ Mich. 6255 ; Wis.* 2330,2350 ; lo. ; Minn.* 62,2 ; Kan. 80,648; Neb. 1,25,34; Del. 75,2; Va. ;* W.Va.;* Ark.;* Cul. ; Ore.;*'-* Nev.;* Wash. ;^ Dak. ; Ida. ;^ Wy. ih. 27 ; Ariz. 1934. But not in case of kxnacy after the lunatic's restoration to reason, if the parties have since cohabited as husband and wife: Vt. ; Mich. 6256; Wis. 2353; Minn. 62,4; Kan. ; Neb. ; Cal. ; Ore. ; Nev. 213 ; Dak. ; Wy. ; Ariz. (D) Or, in many, physically incapable (^. e. impotent) : Vt.^ 2349 ; N.Y. ; * Mich. 6259; Va. ; * W. Va. ; * Ark. ; * Tex.* 2860; Cal."» 5058; Dak."* Civ. C. 39 and 54 ; Ida.^ (e) Or where, in many others, the consent of either party was obtained by force or fraud : Vt. 2357 ; N.Y.*'^- ^ 1882,66 ; Civ. C. 1750 ; Wis. ; * Minn. ; * Neb. ; Ky. 52,1,5 ; Ark. ; * Cal. ; Ore. ;*-'' Nev. ; * Wash. ;'' Dak. ; Ida. ; " S.C. 2028 ; La.'' 110 ; Ariz.'' 1936. So, where there has been a mistake in the person : La.' But not, in several, if at any time before suit (and after the discovery of the fraud : Ore.) the parties have voluntarily cohabited as husband and wife : Vt. ; N.Y. ; Mich. 6257; Wis.; Minn. 62,4; Neb.; Cal,; Ore. ; Nev.; Dak.; La. Ill ; Ariz. Not, in any case, where the marriage has been consummated : S.C. (F) All marriages between a white person and a negro are so voidable (§ 6050) : W.Va.* (G) All marriages where either party had a former husband or wife still living : W.Va.* So, a man-iage may be annulled because the former husband or wife of either party was living at the time, such former marriage being then in force : Cal., Dak. (H) The marriage of minors contracted without the consent of the fiither and mother cannot for that cause be annulled, if it is otherwise contracted with the formalities prescribed by law ; but such want of consent shall be a good cause for the father and mother to disinherit their children thus married, if they think proper : La. 112. NoTKs. — " See § 6150. * They are so declared void only from the time the decree is pronounced ; see § 6112, note *. <= Such marriages must be either void or voidable in all states, except as in §§ 6150, 6151 specified. ^ See § 6112, note ^. « For lunacy it may be brought at any time during the con- tinuance of the lunacy, or after the lunatic's death, the other party being alive. / Only on decree under Art. 615, rendered in the lifetime of at least one of the parties. 3 On apjilication of the party injured only ; see also §6150. * The suit must be brought witliin two years of marriage, t Within six months after the party arrive at the age of consent. > On application of the party laboring under the disability, etc ; see § 6151. * And, in the noted states, when also such marriage was contracted without the consent of the parent or guardian. ' Such marriage, being void by § 611 2, there would seem little use for making it thus voidable. ™ Such impotency continuing, and appearing to be incurable. " Such age is, for purposes of this section, sixteen in the male and fourteen in the female, if the parent, guar- dian, etc., have not consented to the marriage. It seems marriages under the age of consent required in § 6110 are absolutely void. § 6114. Marriages out of the State. (A) I\[arriages prohibited for miscegenation are void as in § 6112, A, although solemnized out of the State : Miss. 1147. So, of bigamous mar- riages (§ 6112, B) : Col. 2250. So, of all marriages which would be void if made in the State, and which are made by parties intending at the time to reside in the State : Ga. 1710. Parties residing in the State cannot evade any of the provisions of its laws as to marriage by going into another state for its solemnization : Ga. (B) But in others, such incestuous (Mass., Me., Va., W.Va.), bigamous (Mass.. Me., W.Va.), marriages, or marriages where one party is insane, etc. (§ 6112, D) (Mass., 670 MARRIAGE. Me., W.Va.), or other voidable marriage (W.Va.) are (1) voidable by decree of court when both parties were resident in the State, and went with the intention of returning, and in order to evade the marriage laws, to another state or country, where the mar- riage was solemnized, and then did in fact return to the home State: Mass." 145,10 ; Va. 105,2; W.Va. 69,3. (2) In Maine, they are absolutely void : Me. 59,9. (C) And in many states, except as above, all marriages contracted out of the State are valid if valid in the state or country where solemnized: Kan. 61,9; Neb. 1,52,17 ; Ky. 52,1,6 ; Ark.* 4596 ; Cal. 5063 ; CoL 2250 ; Dak. Civ. C. 44 ; Ida. ih. 7 ; Wy. 81,17 ; N.M. 986 ; Ariz. 1895. Notes. — " In the noted .states, they are " deemed void." ^ Provided the parties actually resided in such state or country at the time. § 6115. The Issue (a) of a marriage voidable are, nevertheless, legitimate if born or begotten before the decree annulling it: Ind. 1025 ; Kan. 80,648; Va. 119,7; W.Va. 66,7; Mo. 2171. So, specially, of marriages where either party is under the lawful age : Nev. 196. (b) So, in many states, of (except as below) the issue of a marriage so-called void : O. 4175 ; Ind. 1026 ; Mich. 6223 ; Wis. 2274 ; Minn. 61,17 ; Va. ; W.Va.; Ky. 52,1,3 ; Ark. 2526 ; Tex. 1656 ; Cab 5084,6387 ; Nev. 795 ; Dak. Civ. C. 780 ; Ida. Prob. C. 316; Mon. Prob. C. 536; Ga. 1726,1702; Ala. 2673; La.« 117; N.M. 997. And the issue of a marriage declared void on account of (1) insanity or idiocy are deemed the lawful issue of the parent who was capable of contracting the marriage : Mass. 145,13; Me.; Vt. 2355; N.Y. Civ. C. 1749; lo. ; Mich. 6250; Neb. 1,25,29; Wy. ih. 23; La. 118; Ariz. 1929; (2) So, when for nonage : Mass., Me., Mich., lo., Neb., Wy., La., Ariz. ; (3) where one of the parties is an idiot or lunatic the issue is legitimate as to both : Del., Ky. ; (4) So, when for consanguinity or affinity of the parties : N.J. Div. 3. (5) So, the issue of marriages annulled for bigamy (§ 6113,6) or insanity, begotten before the decree, are legitimate : Cal. 5084; Dak. Civ. C. 56. (C) Otherwise, it would seem that the issue of a void marriage must be ille- gitimate ; and the laws so enact, — (1) When the marriage is void for cause of relationship : N.H. 180,3 ; Mass. 145,12; Me. 60,19 ; Vt. 2348 ; R.I. 163,3 ; lo. 2234 ; Neb. 1,25,31 ; Deb 75,11 ; Ky. ; -^ Wy. ib. 25 ; Ariz. 1931 ; (2) or miscegenation : Me., Neb., Del., N.C.,'' Ky., Ariz. ; (3) or bigamy (but see § 6116) : R.I. 163,5 ; N.J. Divorce, 2 ; Ind. ; Mich.; DeL ; Miss. 1156 ; Fla. 93,5 ; (4) or lunacy : R.I. ; (5) or impotency : lo. The marriage which has been declared null produces nevertheless its civil effects as it relates to the parties and their children, if it has been contracted in good faith. If only one of the parties acted in good faith, the marriage produces its civil effects only in his or her favor, and in favor of the children horn of the marriage : La. 117,118. Notes. — « "If the parties acted in good faith ; otherwise, the children are legitimate only of such party as acted in good faith." * And such issue cannot be legitimated (Art. 632). ^ Only illegiti- mate when such marriage is decreed void in the lifetime of the parties. § 6116. Enoch Arden Case. (A) In several states, when one party to a mar- riage marries again on the false rumor of another's death, when such other has been absent two years, he or she is not liable to the pains of adultery or bigamy, btit the one not twice married may on his or her return elect to have his former wife or husband restored, or his own marriage dissolved : Pa. Divorce, 21 ; Tenn. 3319. See also in Part V. (b) And in many others, if the second marriage was made in good faith and with reasonable belief of the former husband or •wife's death, the issue of it are the legitimate children of the parent not pre- FORM OF MARRIAGE. 671 viously married : Mass. 145,14 ; Me. 60,20 ; NT. Civ. C. 1745 ; Tnd. 1027 ; Mich. 6251 ; lo. 2235; Neb. 1,25,30; Del. 75,11 ; Ky. 52,1,4 ; Wy. ib. 24; Ariz. 1930 ; DC 741-2. And it seems they are, if begotten before the discovery of such disability by the innocent party, the legitimate children of both the parties : Ind., Ky. (In New York and Indiana it is declared sufficient if either part?/ acted in good faith.) (C) In all cases where a husband abandons his wife, or a wife her husband, and resides out of the State for five years without being known to such person to be living during that time, his or her death is presumed and a subsequent marriage entered into by such wife or husband is valid as if such husband or wife were dead : N.Y. 2,8,1,6; Tenn. 3293 ; Ark. 4597. (D) So, if either husband or wife has been absent seven years together, the other, not knowing such party to be living, may marry without being sub- ject to indictment for bigamy : Md. 72,102 ; W.Va. 45,2 ; 1882,163 ; Mo. 1534 ; S.C. 2029. So, five years: Ala. 4186. So, three years: Miss. 59,5. And such person abandoning the other forfeits all claim to the real or personal estate of the other ; and, if he be a man, the wife has her dower and intestate share in personalty as if he were dead : Md. See in Part V., for other states. See also § 6112, B. (E) Ten years of absence, without any news of the absentee, is a sufficient cause for the husband or wife of such absentee to contract another marriage, after having been authorized to do so by the judge, on due proof that such absence without any news had continued the time required as aforesaid. And if after the said marriage the husband or wife who was absent, hap- pens to return, he or she shall be free of his or her first contract, and at liberty to contract another marriage, and the marriage entered into by the husband or wife during and on account of the absence shall remain firm and valid : La. 80. Art. 612. Form of Marriage. § 6120. Preliminaries : Bans or Notice of Intention. Throughout this article, and articles 613 and 614, it will be understood that the provisions are directory merely, xniless the contraiy is expressed, and marriages, although informal, will be nevertheless valid, except as otherwise implied in § 6138 and elsewhere. The last article (611) treats of the cases where marriages are invalid. Transgressions of the following articles usually merely render the offender, clerk, priest, or officer, liable to a fine or penalty ; or the parties to a misdemeanor : Mass. 145.25 ; Me. 59,5 and 6 ; 13- 14 and 18; Vt. 2316,2318 ; R.I. 163,13-14 ; Ct. 14,1,2 ; N.J. Marriage, 4 ; Pa. Mar- riage, 1 ; 1885,115,5 ; 0. 6390,6392 ; Ind. 2149,5332-3 ; 111. 38,102| ; 89,13-16 ; Mich. 6218-9 ; lo. 2192,2195 ; Minn. 61,12-4 ; Kan. 61,4 and 7; Neb. 1,52,13 ; Md. 72,105, 107-110; Va. 192,4-5 ; 1878,311,7,4-5 ; W.Va. 1882,123,4-5 ; N.C. 1816-7; Ky. 52, 1,14-7 ; Tenn. 3300-2 ; Mo. 3269 ; 1545 ; 3269-3270 ; 1881, p. 162,4 ; Ark. 4601 ; 4616-4620; Cab 5068; Ore. Crim. C. 687-8 ; Nev. 203-5; Col. 2253,2259,2263; Wash. 924,2387,2394-5 ; Dak. Civ. C. 45 ; Ida. 1876-7, p. 25,8,15,17,18 ; Mon. G.L. 860-1; Wy. 81,13; Ga. 1706: Ala. 2681 ; 1881,34; 2682,4429-4431; Miss. 1148,1154; ria.149,4; La. D. 2206; N.M. 982-3,987,994; Ariz. 1897-1901. See note. In most states, persons intending to be married must before their marriage apply for a license or cause notice of their intention to be entered (recorded) (1) in the office of the clerk of the city or town in which they respectively dwell, or, if they do not dwell in the State, in the town where the marriage is solemnized :" N.H. 180,4 ; Mass." 145, 16 ; Me. 59,4 ; R.L 163,9. So, (2) with the registrar or clerk of the town where the marriage is to be made in all cases : Ct. 14,1,2. With the clerk of the county or superior court of the county where the marriage is to take place : 111. 89,6 ; lo. 2187 ; Del. 9,13; Ark. 4610 ; Tex. 2840 ; Cal. 5069 ; Wy. 81,4, 672 MARRIAGE. (3) With the clerk of the county («) where the woman resides : Minn. 61,7; Ore. 34,12 ; (/3) or where either of the parties resides : Ky. 52,1,10 ; Nev. 198 ; or, if she be not resident in the State, (y) of the county where the marriage is to take place : Minn. ; or (8) from any county clerk in the State : Nev. ; Col. 2251. So, (4) with the recorder of deeds of the county where the marriage takes place : N.C. 1813 ; Mo. 1881, p. 161, § 2. (5) With the ordinary, or register of probate of the county where the woman resides : Ga. 1703. (6) With the auditor of the county where the marriage takes place : Wash. 2390. (7) With the clerk of the Circuit Court, etc., of the county where the bride resides : Ind. 5.327; Minn. 61,7; Md. 51,7; 1882,357,1 ; Va. 104,1; 1880,279; W.Va. 121,1 ; Tenn. 3296; Miss. 1148 ; Fla. 149,2. (8) With the probate judge of the county where the bride resides : 0. 6389 ; Kan. 61,5; Ga. 1703; Ala. 2677. (9) With the clerk ot the town where the groom resides, or where the bride resides if he be not resident in the State ; or, if neither reside in the State, from the clerk of the town where tlie marriage is solemnized : Vt. 2311. (10) " The parents or guardians, if they cimveniently can, shall be first consulted with, and the parties' clearness of all engagements signified by a certificate from some credible person where they have lived or do live, produced to such religious society to which they relate, or to some justice of the peace of the county in which they live, and by their affixing their intentions of marriage at the court house or meeting-house door in each respective county where tlie parties reside, one month be- fore the solemnization, which publication shall first be brought before one or more justices of the peace in such counties, and by them dated and subscribed : " Pa. Marriage, 1. But by a new law, no person may be joined in marriage until a license be obtained from the clerk of the Orphans' Court in the county where the marriage is solemnized: Pa. 1885,115,1. (11) With the probate judge of the cf>unty where the marriage takes place: Neb. 1,52,4. (12) With a justice of the peace, in the parish of Orleans ; elsewhere with the clerks of the District Courts, in the parish where one at least, of the parties resides: La. 99,100 ; D. 2202. (13) With the clerk of the Supreme Court : D.C. 720. The clerk or judge is to make record of tlie application, and of the facts as to age, capacity, etc. r'vt. 231.3 ; lo. 2190; Minn. 61,8 ; Kan. 61,6 ; Neb. 1,52,6 ; Md. 30,1; 1882,357 ; W.Va. 121,14; Ore. 34,15; Wy. 81,6. And so in other states. He is to record all licenses issued by him : Vt. 2312 ; Va. 104,2 ; W.Va. ; Mo. 1881, p. 162,5 ; Tex. 2842 ; Ala. 2679. Bans, when required, there being no license (§ 6121), must have been published in some church within the hundred (or county, except in Delaware) of the bride's resi- dence, (1) on two Sundays, immediately after divine service, and no objection made : 0. 6389 ; Del. 74,2 ; (2) on three Sundays, by some minister residing in the county : Md. 51,5. It seems bans are still recognized by the laws of one other state: Ga. 1704. The church in which bans are read must, in Maryland, be duly recorded as such in the office of a clerk of court, or the bans are not good : Md. 51,6-7. Note. — « Failure to comply with this provision will, it seems, render the marriage void unless consummated with a full belief on the part of the parties or either of them that they have been law- fully married ; § 6138. So, probably in the other states. § 6121. License. In most of the states, the clerk, etc., issues a license upon notice of intention or application being filed according to § 6120 : N.H. 180,5 ; Mass. 145,17 ; Me. 59,5 ; Ct. ; Pa. ; 0. ; Ind. ; 111. 89,7 ; lo. 2187 ; Minn. 61,8 ; Kan. 61,5 ; Neb. ; N.C. ; Ky. ; Tenn. ; Mo. ; Ark. 4611 ; Te.x. 2840 ; Cal. ; Ore. 34,12 ; Nev. 198; Col. 2251 ; Wash. ; Ga. ; Fla. ; La. D. 2204. So, it is implied, in the other states. This certificate is generally a license for any person authorized to perform marriages to join in marriage the parties, (1) in said toivn : Ct. ; (2) in said county : Pa., La. ; in any town or county where authorized : Vt. 2311 ; Ind. ; Kan. ; W.Va. 121,14 ; Mo.; Ark. 4612 ; Tex. ; Ore. ; Col.; Wash. ; Miss. 1148 ; Ala. ; and so, it seems, in other states; see § 6130, note \ FORM OF MARRIAGE. 673 § 6122. Age of Parties. (Compare also § 6134.) In most states, the clerk or magistrate, etc., is forbidden to issue a certificate (1) to a male under twenty- one or a female under eighteen : Mass. 145,18 ; Me. 59,5 ; Vt. 2314 ; 0."- " 6384, 6390 ; 1885, p. 202 ; Ind. 5328 ; 111. 89,7 and 13; Minn."' ^•'^61,8 ; Neb."^ 1,52,5 ; Mo.'^ 1881, p. 162,2-3 ; Ark. 4614 ; 1885,123 ; Te.x. 2841 ; Cal.« 5069, Amt. ; Wy. 81,5 ; Ala."' ^ 2078 ; Miss.^ 1148 ; La. ; or (2) if either party be under twenty-one : R.I. 163,9; Ct. ; Pa.^''' 1885,115,3 ; Va."' *> ^ 104,3 ; W.Va. 121,2; KG. 1814; ■^ya,b,c 52^^11 ; Fla." 149,2; La. 97. Except (a) upon the written or personal application or consent of the parent, relative, master, or guardian of such person ; (but if there be none in the State, such application need not in Massachusetts, Maine, or Oregon * be required) ; or (/3) with the written consent of the parent or guardian : R.I. ; Ct. ; lo.'' 2188,2191 ; Ore. 34,13 ; Nev."' '^ 198 ; Wash. 2391 ; Wy.;'' Ga. 1705. So, in Pennsylvania, *' no justice can sign tiie publication (§ 6120) nor any person publish the bans of any persons under twenty-one unless consent of the parents or guardians be proved by a certificate, if they can be had or consulted with : " Pa. ih. 4. The clerk may (or must, in a few) require of any person applying for such certificate an affidavit or other evidence setting forth the age of the parties: Mass. 145,19 ; Pa. ; Va. 104,15 ; Ark. ; Cal. ; Miss. ; La. 98. Such affidavit must always be filed, signed by a person other than the parties : lud. 5329; Ore. 34,14; Col. 2253; Wash. 2392. So, in several, he may examine the party, or any witness, under oath : 111. 89,8 ; lo. 2189; W.Va. 121,14; Cal. ; Nev. 198; Wy. 81,6; Ga. He may examine him as to any subject relating to the legality of the marriage : Pa. ; 0. 6390; 1885, p. 202 ; Minm 61^8; Kan. 61,8; N.C. 1814; Cal. ; Nev. ; Col. 2253-4. No marriage license can be issued unless the parties are of the age of consent : To. ; Neb. 1,51,7 ; Ore. ; Col. ; Wy. 81,7 ; compare § 6110. Nor if either party is legally in- competent to marry : 0., lo.. Neb., Wy. So, of course, in all states. In a few, the party applying must give the clerk a bond, signed by one person besides himself, conditioned that the parties have a lawful right to a license: Del. 9,16 ; Ky. 52,1,11 (if unknown to the clerk): Tenn. 3297; Ark. 4613; Ala.; Miss. 1148; La. 101. Notes. — " Unless such party has been married before. * Of the father or guardian, or if none, of the mother. '^ The application if written must be attested. '^ Such consent must be acknowledged approved, and recorded with the clerk. « When the woman has lived six months in the county. § 6123. Caveats. In Rhode Island, any person having a lawful objection to the marriage may state the same in writing to the minister, etc., whereupon he shall not proceed until the objection is removed : R.I. 163,11. So, in Maine, any person believing two parties about to contract a marriage unlawfully may file a caution in the office of the town clerk where their notice ($ 6120) should be filed ; in which case the clerk must withhold a certificate, until there is a hearing before two justices of the peace : Me. .59,8. In case of an opposition to the marriage, if it bo supported by the oath of the party making it, and by reason sufficient in the opinion of the judge to authorize a suspension of the mar- riage, it shall be notified to the parties, and a day shall be assigned for a hearing tliereon. The time fixed for the hearing of the parties and the decision on the opposition, shall not exceed ten days, from the day on which the opposition shall have been made. Any person may make opposition to a marriage, but if the opposition be overruled, the party making it shall pay costs : La. 106-8. § 6124. Marriages -without License. When unmarried persons, not minors, have been living together as man and wife, they may, without a license, be married by any clergyman ; and a certificate is issued to the parties by such clergyman, and recorded by him on the records of the church ; no other record need be made : Cal. 5079, Amt. 43 674: MARRIAGE. § 6125. Curative Acts. All marriages heretofore (1881) solemnized iu the State by any minister or clergyman duly accredited and acting as such, are declared legal : Ark. 4602. There are similar acts in many states ; but it has been impossible to include them in this work, as they are frequently not included in the state revisions. See also Tenn. 3304-5 ; Mo, 2844-5; Ark. 1885,110. " All marriages heretofore solemnized " within the State by court commissioners are valid from the time of solemnization : Wis. 2339. All marriages solemnized iu Colorado by any president or judge of a mining district or jus- tice of the peace or clergyman prior to March 10, 1864, are declared confirmed and made legal : c;ol. 2265. Art. 613. Marriage Ceremonies. § 6130. Who may Solemnize, (a) Any minister, priest, or preacher of the Gospel may, in all the states, solemnize a marriage ; but (1) he must, in most states, be ordained according to the usage of his denomination (or, in some others, " licensed : " Ct, Tex., Col.) : N.H. 180,9 ; Mass. 145,22 ; Me. 59,11 ; Vt. 2310 ; R.I. 163,6 ; Ct. 14,1,5 ; KJ. Marriage, 2 ; 1882,143 ; Appendix, Mar- riage, 1 ; 0. 6385 ; 111. 89,4 ; Mich. 6215 ; Wis. 2331 ; lo. 2193 ; Minn. 61,4 ; Neb. 1,52,8 ; Md. 51,4 ; Del 74,2 ; N.C. 1812 ; Ky. 52,1,8 ; Tenn. 3294 ; Mo. 3267; Ark. 4599; Tex. 2838; Nev. 197; Col. 2255 ; Wy. 81,8 ; Ala. 2674; Miss. 1150 ; Fla. 149,1 ; KM. 977 ; Ariz. 1896 ; D.C. 718. In others, (2) he must be licensed" to marry: Me. 59,12; O. 6386-7; Wis. 2332 ; Minn." 61,5 ; Kan. 61,10 ; Del. V. 16,381,11 ; Va. 104,4; W.Va. 121,3 ; 1882,108 ; Ky. 52,1,9 ; Ark. 4600,4606-8 ; Nev. ; Ala. ; D.C. And in several, (3) he must be resident in the State : N.H. ; Mass. ; Vt. ; R.I. ; 0. ; Ind. 5326 ; Mich. ; Ore. 34,4 ; Wash. 2382 ; 1883, p. 43 ; Men. G. L. 856. Or must be laboring statedly in the State as a minister or missionary : Vt., Mich. In other states, no such conditions are required : N.Y. 2,8,1,8; Cal. 5070, Amt. ; Dak. Civ. C. 45 ; Ida. ib. 10 ; Ga. 1703 ; La. 102. So, in Rhode Island, any "elder" of any religious denomination, resident as above, may solemnize marriages. Any minister publicly ordained according to the customs of any society professing to meet, and incorporated, for religious purposes, holding stated or regular services : R I. 163,7. (B) Any justice of the peace : N.H. ; Mass. ; Me. ; Vt. f Ct. ; KY. ; N.J. ; 0.* 583 ; Ind. ;* 111. ; Mich. ;" Wis. ;'' lo. ;^ Minn. ;^ Kan. ; Neb. ; N.C. ; Ky. ;* Tenn. ; Mo. ; Ark. ; Tex. ; Cal. ; Nev. ;* Col. ; Wash. ; * Dak. ; Ida. ; Mon. ; * Wy. ; Ga. ; Ala.;* Miss.* Fla.; La.* 103; D. 2207,2208; Ariz. Any recorder: N.J. 1882,143. "Any judicial officer, within his jurisdiction: " Ore. Any notary public : Fla. " Any civil magistrate : " N.M. (C) Any mayor: N.Y., N.J., lo.,** Del., Dak. Any recorder of a city: N.Y., N. J. ; or county supervisor: Miss.* Any alderman : N.Y. The state governor: Ark., Ida., Ariz. (D) Any judge of a superior court : KJ., Ic, Tex., Cal., Nev.,* Wash., Ida., Ala., Miss., Fla., La. ; of a supreme court: R.I., lo., Cal., Dak., Ida., Ala., Miss. ; of a pro- bate court: Mo. 1176; Wash.; Dak.; Ida.; Ala.;* of any court of record : N.Y., Ind.,* 111., Wis., Minn., Ark., Mon. ; of a county or parish court : N.Y., Ky., Mo., Tex., Fla., La. ; of a city court : Ala. Any police justice : N.J. "Any judge," simply : Ct., Kan., Neb., Tenn., Mo., Col., Wy., Ga., Ariz. Any court commissioner : Wis. ; * or chan- cellor : Ala., Miss.* (D) In Virginia, any person may be licensed to solemnize marriages by the County Court, on giving $1,500 bond : Va. 104,5. (E) In two, any superintendent of a deaf and dumb institution may solenmize a marriage : 111. ; Minn. 1885,38. (F) Wardens of the town of New Shoreham : R.I. 163,8. MARRIAGE CEREMONIES. 675 (G) The parties, after obtaining a certificate from the clerk of the Orphan's Court, may join themselves in marriage before two witnesses, and must make a return^ with the certificates of such witnesses, to the court, as in $ 6141 : Pa. 1885,115,1. Failure to comply with this section does not, generally, render the marriage void (see H 6120,6137) ; but in Kentucky, any marriage is void which is not contracted in the presence of an authorized person or society : Ky. 52,1,2. Notes. — " A minister will he so licensed on giving proof of his ordination and a bond : Ya., W.Va., Ky. In \Visconsin, Minnesota, Arkansas, Nevada, he must file a copy of his credentials of ordination, or other proof of such official character, with the clerk of the Circuit Court (or the recorder of deeds : Del., Ark. ; or the judge of probate : 0.) of some county in the State, who shall record the same and give a certificate thereof. And (in Wisconsin, Minnesota, Arkansas) tlie place where such credentials are recorded must be indorsed upon the certificate of marriage and recorded with it. In the District of Columbia, he is licensed by the clerk of the Supreme Court : D.C. 719. In one other, he is commis- sioned by the governor : Me. ^ Only in the county or district where such officer is appointed. § 6131. Place. In Massachusetts, every marriage must be solemnized in the town where one of the parties, or where the person solemnizing it, resides : Mass. 145,22. Compare $6121. § 6132. Manner. When the marriage is by a minister or priest, (1) no par- ticular form is required : Ark. 4603. (2) It may be according to the forms and customs of his church : KY. ; Ark. ; D.C. 718. So, in many states, in any case, except that the parties must solemnly declare, in the presence of the magistrate or minister (and witnesses, in states where necessary), that they take each other as husband or wife : N.Y. 2,8,1,9 ; Pa. Marriage, 1 ; Mich. 6217 ; Wis. 2335 ; Minn. 61,9 ; Neb. 1,52,9; N.C. 1812 ; Tenn. 3295; Cal. 5071 ; Ore. 34,5; Nev. 199 ; Wash. 2383; Dak. Civ. C. 46 ; Ida. ih. 10; Wy. 81,9. When by a magistrate, " such form as the magistrate, etc., deem most appropriate : " Ark. In one state, in any case, the parties fully, seriously, and plainly express their consent to take each other presently as husband and wife, in the presence of each other and the minister, etc. ; and the latter must consequently declare them man and wife : N.C. 1812. The person solemnizing must always require a license, etc., according to § 6120 : N.H. 180,8; Mass.; Me. 59,5 ; Vt. 2311 ; K.I. 163,12; Ct. 14,1,2 ;'' Pa. ih. 6; 1885,115 ; 0. 6389 ; 111. 89,15 ; lo. 2192 ; Kan. 61,4 ; Neb. 1,52,4; Md.« 51,5 and 10 ; Del.'' 74,2 ; Va. 104,7 ; W.Va. 121,6 ; N.C. 1813,1817 ; Ky. 52,1,9,10 ; Tenn. 3296 ; Mo. 1881, p. 161, § 1 ; Cal. 5072 ; Ore. ; Nev. 1881,75 ; Col. 2256 ; Ala. 2677 ; Miss. 1150 ; Fla. 149,2 ; La. 104 ; D. 2204 ; D.C. 720. So, by im- plication, in other states. For citations, see also § 6121. He must be assured of the identity of the parties : Dak, Civ. C. 47 ; Ida. ih. 9. And of their names and residence : Dak., Ida. So, of all facts stated in the license : Cal. He may examine the parties under oath as to such facts : Cal. He may not marry parties either of whom is drunk : Pa. ib. 8. No marriage can be contracted or celebrated by procuration : La. 109. Note. — " Unless there have been bans. § 6133. "Witnesses." There must, in several states, be two witnesses : P.I. 163,15; Mich. 6217; Wis. 2335; Minn. 61,9; Neb.; Ore.; Nev. 199; Wash.; Ida. 1876-7, p. 24, § 12 ; Wy. In others, one witness : N.Y. 2,8,1,9 ; Dak. Civ. C. 4G. In one, three witnesses, who must sign the act of return (§ 6141) : La. D. 2205. In Pennsylvania, there must be twelve witnesses : Pa. Marriage, 1. Note. — « Compare also §§ 6142,6145. § 6134. Age. (Compare also § 6122.) (A) The laws of a few states make it the duty of the minister or magistrate to inquire and ascertain the Christian names and sur- 576 MARRIAGE. names of parties, their residence, and that they are of sufficient age to be capable by law of contractino- marriage (and the names and residence of the witness, or of two witnesses, if there be two, in New York and Dakota) : R.I. 85,3-4 ; N.Y. 2,8,1,10 ; Dak. Civ. C. 47 ; Ida. ib. 9. For such purposes he may examine the parties on oath: N.Y. ib. 11 ; N.J. Marriage, 3; Ida. ib. 11. He may require the parties to sign a certificate : R.I., N.Y. (B) So, in several, he must, before solemnizing a marriage, examine at least one of the parties on oath as to the legality of such intended marriage ; and in no case shall he solemnize a marriage unless satisfied from such examination that there is no legal impediment thereto :" Mich. 6216 ; Wis. 2333; Minn. 61,6. Or in others, he is to require evidence from other persons of the above facts : N.M. 980. (C) In many states, no minister or magistrate shall solemnize a marriage when he has reasonable cause to suppose the male to be under the age of twenty-one, or the female under eighteen (or eighteen and sixteen respectively, in Idaho and Arizona ; twenty-one and sixteen, in Maryland, or the female fourteen, in New York) ; except with the consent of the parent or guardian having the custody of the minor, if there is any such parent, etc., in the State competent to act :" Mass. 145,6 ; Me. 59,5 ; N.Y. Civ.C. 1742 ; KJ. Marriage, 3 ; 0. 6385,6393 ; Wis. 2334 ; Md. 72,111 ; Del. 74,3 ; Mo. 3268 ; Col. 2257; Ida.; N.M. 979,993; Ariz. 1897. But such consent is not necessary when the minor has been married before : Wis., Ida. He may require the oath of the parties that they are of lawful age : N.J. And must be satisfied that the parties have a legal right to marry (see B, above) : R.I. 163, 13; N.Y. 2,8,1,12; 0.; Ida.; N.M. 980. Such consent must be evidenced either by the parent or guardian being present or by a written certificate, witnessed by one person, taken by any person authorized to solemnize a marriage : N.J. Marriage, 3 ; 0. ; Mo. ; N.M. 979. So, in Wisconsin, if such consent is in writing, it must be signed by the parent or guardian, and attested by two witnesses, one of whom shall appear and make oath that he saw such parent or guardian execute the same : Wis. If there be no parent or guardian in the State, he may dispense with such consent : Col. Note. — « See § 6122 for similar provisions. § 6135. Quakers and Sects, (a) In many states, a marriage among the Friends is valid if performed according to their customs : N.H. 180,7 ; Mass. 145,23 and 27 ; Me. 59,10 ; E.I. 163,10 and 16 ; N.Y. 2,8,1,19 ; Ind. 5326 ; 111. 89,4; Mich. 6221; Wis. 2338; Minn. 61,16; Kan. 61,10; Md. 51,4; KG. 1812; Nev. 210; Ala. 2676; Miss. 1153. So, in several, a marriage among Jews : R.I. ; N.Y. ; Ga. 1707. Among German Baptists : Ind. (b) So, in many, marriages between parties belonging to any religious society may be solemnized by the person and in the manner practised in such society : 0. 6385 ; 111. 38,102-1 ; 89,5 ; Mich. ; lo. 2198 ; Neb. 1,52,15 ; Va. 104,6 ; W.Va. 121,5 ; Ky. 52,1,8 ; Mo. 3272 ; Ark. 4604 ; Ore. 34,11 ; Wash. 2382 ; Wy. 81, 15 ; Ga. ; Ala. 2675 ; Miss. 1151. (C) So, in others, the man-iage may he made according to the usages of any re- ligious society to which one of the parties may belong : N.J. Marriage, 2 ; App. ib. I ; Del. 74,2. So, in a few others ; and it does not seem necessary that the parties, or either of them, should belong to such society : Ct. 14,1,5 ; N.M. 984. But where any mode is thus pursued which dispenses with the services of a clergyman or magistrate, (1) tlie husband must make the return prescribed by $ 6141 : lo. 2199. (2) The clerk or proper officer of such religious society must make record or return according to §§ 6140-1 : Me. ; R.T. 85,4 ; 163,10 ; N.J. ib. 7 ; Mich. 859 ; Minn. ; Neb. Md. 51,5 ; Va. 104,15 ; Mo. ; Ark. 4605 ; Ore. ; Wash. 2389 ; Wy. ; Ala. ; Miss. 1149 ; N.M. RECORD OF MARRIAGES. 677 (3) '' The parties to the marriage must sign and deliver to the town clerk the certificate required by § 6120 : " R.I. 163,17. . ^^ Provided, that this law (§$ 6120,6132-3,6141) shall not extend to any who shall marry or be married in the religious society to which they belong, so as notice be given by either of the parties to the parents or guardians one month before the marriage : " Pa. Marriage, 2. And no license can dispense with the notice so required to parents or guardians : Pa. ib. 3. § 6136. ** Scotch " Marriages. lu New Hampshire, persons cohabiting and ac- knowledging each other as husband and wife, and generally reputed to be such for three years and until the decease of one of them, shall thereafter be deemed to have been legally married: N.H. 180,16; and compare § 6144. § 6137. Informal Marriages, (a) If the marriage, being lawful in other re- spects, is consummated with a full belief on the part of the parties or either of them that they have been lawfully married, (1) no marriage solemnized before a justice of the peace or minister (or in the Society of Friends according to their usage) shall be deemed void on account of the want of authority of such person : KH. ; Mass. ; Me. ; Vt. 2319 ; Ind. 5330 ; Mich. 6220 ; Wis. 2337 ; Minn. 61,15 ; Neb. 1,52,14 ; Del. 74,2 ; Va. 104,7; W.Va. 121,6 ; Ore. 34,10 ; Nev. 206 ; Wash. 2388 ; Ida. ib. 19 ; Mon. G. L. 862 ; Wy. 81,14; Ga. 1709 ; or (2) by any omis- sion or informality in entering the intention of marriage (§ 6120) : N.H. 180, 13; Mass. 145,27; Me. 59,17. No marriage is void on account of the incapacity of the person solemnizing it : Ind. 5326. If by any person professing to be a minister or magistrate, etc., it is valid as above : Mich. ; Wis. ; Ky. 52,1,7; Ore. ; Nev. Nor shall such objection specified above be heard from one who has fraudulently induced the other to believe the marriage legal : Ga. Marriages solemnized with the consent of the parties in any other form than those prescribed are generally valid. See § 6120. (B) Persons married without the solemnization above in this article provided for must jointly make a declaration of marriage, showing (1) the names, ages, and residence of the parties ; (2) the fact of marriage ; (3) the time of the marriage ; (4) that the marriage has not been solemnized: Cal. 5075; Dak. Civ. C. 46; La. D. 2174. If no record of the solemnization of a marriage heretofore contracted be known to exist, the parties may join in a written declaration of such marriage, substantially showing (I) the names, ages, and residence of the parties ; (2) the fixct of marriage ; (3) that no record of such mar- riage is known to exist. Such declaration must be subscribed by the parties, and attested by at least three witnesses : Cal. 5076 ; Dak. Declarations of marriages must be acknowledged and recorded like grants of real property: Cal. 5077 ; Dak. If either party to any marriage denies the same or refuses to join in a declaration thereof, the other has an action to have the validity of the marriage declared : Cal. 5078 ; Dak. § 6138. Foreign Marriages. Marriages solemnized in a foreign country by a consul or diplomatic agent of the United States are valid : Mass. 145,28. Compare $ 6114. Art. 614. Record of Marriages. § 6140. By the Person Solemnizing. In most states, the person solemnizing a marriage is to enter the facts and day of the marriage (1) in a book or record : N.H. 181,1; Mass. 145,24; Me. 59,15; RI. 85,3; N.Y. 2,8,1,10; 1847,152; 1853,75 ; K J. JlfarHa^res, 5-6 ; Mich. 859 ; Wis. 1022; Minn. 61,11; 1883,68; Del. 74,5 ; Va. 104,15; Mo. 3270 ; Cal. 3074, Amt. ; Nev. 201 ; Col. 2258 ; Dak. Civ. C. 48 ; Ida. ib. 12 ; Mon. G. L. 857 ; N.M. 981 ; (2) upon the license : Ct. 14, 1,3; Pa. 1885,115,1; Kan. 61,10; Neb. 1,52,8; Md. 1882,357,2; W.Va. 121,14; Ql^ MARRIAGE. N.C. 1816; Tenn. 3298; Mo. 1881, p. 162; Ark. 4612 ; Tex. 2842 ; Col. 2252; Ala. 2680 ; Fla. 149,3 ; Ariz. 1898. The person solemnizing may keep the license : Ore. 34,15 ; Wash. 2393. § 6141. Return. By the laws of nearly all the states, the person solemnizing a mar- riage (or, in Arkansas, the person obtaining the license : § 6121) is required to make a written return (of the license, or record, or copy of the record) of such marriage to the town clerks (1) of the towns where the marriage was made and where the parties resided: N.H. 181,2; 1883,70; Mass. 145,24: N.Y. 2,8,1,14; N.J. Marriage, 6; 1882,239,1 and 7. In the District of Columbia, the minister must appear in person in the clerk's ofl&ce of the Supreme Court, and certify to the marriage : D.C. 720. (2) In most states, to the town (or county) clerk where the marriage was solemnized : Me. 59, 15 ; N.J. Marriages, 5 ; Ind. 5331 ; 111. 89,9-10 ; lo. 2196 ; Minn. 61,11 ; 1883,68 ; Va. 104, 15 ; Ore. 34,7 ; Col. 2258 ; Dak. Civ. C. 50. (3) To the county clerk, etc., issuing the license: Vt. 2315 ; Ct. 14,1,3; Pa. 1885,115,4 ; 0. 6391, Amt. ; lo. 2196; Minn.; Kan. ; Md. 1882,357,4 ; W.Va. ; Ky. ; N.C. 1816 ; Tenn. ; Ark. 4612,4615 ; Tex. 2842 ; Col. 2252 ; Wy. 81,11 ; Ala. 2680; Miss. 1149 ; Fla. 149,3 ; La. 105 ; D. 2205 ; or, if no license, to the county clerk where the marriage was solemnized : Col. 2258 ; Wy. (4) To the recorder of deeds of the county where the marriage was solemnized : Wis. 1022; Del. 74,5; N.C. 1818; Mo. 3269 ; Cal. 5074; Nev. 201 ; Dak.; Ida. ib. 12; Mon. G. L. 857; Ariz. 1898. (5) To the district court clerk of the county where the marriage was solemnized : N.J. ib. 6 ; Minn. (6) To the probate judge, or register, or ordinary issuing the license : Kan. 60,6 ; Neb. J, 52,8 and 11 ; Wash. 2385 ; Ga. 1703. (7) To the clerk of the probate court of the county where the marriage was solemnized: Pa. 1885,115,1 ; N.M. 981. (8) The town clerk returns to the clerk of courts for his county a transcript of all records of marriages made on his books during the year, and by such clerk it is accordingly recorded: Me. 59,19. (9) The certificate of their marriage, under the hands of the parties, and witnesses at least twelve, and one of them a justice of the peace, shall be brought to the register of the county where they are married, and by him recorded : Pa. Marriage, 1. [There are also frequent provisions for the return of all marriages to the Secretary of State or some similar officer.] And by such town or county clerk or recorder, etc., the marriage is accordingly recorded: Vt. 2551 ; N.J. ib. 9 ; Pa. ; 0. ; Ind.; 111. 89,11 ; Wis. 1026 ; lo. 2197; Minn.; Kan.; Neb. 1,52,12; Del. V. 16,381,2 ; Va. 104,17 ; W.Va. 121,15; N.C; Ky. 52,1,13; Mo. 3271 ; Ark. 4619 ; Tex.; Ore. 34,8; Nev. 202 ; Col. 2260-1 ; Wash. 2386 ; Dak. ; Ida. ib. 13 ; Mon. G. L. 859 ; Wy. 81,12 ; Ga. ; Ala. ; Miss. ; Fla. ; N.M. 983; Ariz. 1899. § 6142. Certificate, (a) In several states, the magistrate or minister who has solemnized a marriage must give to each of tlie parties, if requested, a certifi- cate thereof, specifying therein the names and residence of the parties and (except in Iowa) of at least two of the witnesses present, and the time and place of such marriage: KY. 2,8,1,13; Mich. 859; Wis. 2336; lo. 2194; Minn. 61,10; Neb., 1,52,10 ; Ore. 34,6; Nev. 200; Wash. 2384; Dak. Civ. C. 49; Ida. ib. 14; Wy. 81,10. And also stating therein that he had examined on oath one or both of the parties, and found no legal impediment to their marriage: N.Y., Wis. ; and where the consent of the parent or guardian is necessary, stating that the same was duly given : Wis. ; and also that the parties were personally known to him, or satisfactorily proved by the oath of a person known to him to be the persons described in the certificate : N.Y., Dak. ; that he had ascert.ained that they were of sufficient age to contract marriage : Dak. ; the date of the license and by whom issued : Wash. (B) The persons solemnizing a marriage must make, sign, and indorse upon or at- tach to the license a certificate showing (1) the fact, time, and place of solemnization, RECORD OF MARRIAGES. 679 and (2) the names and places of residence of one or more witnesses to the ceremony (and at their request must furnish either party with a copy : Cal.) : N.C. 1815 ; Ky. 52, 1,12; Cal. 5073-4. (C) The clerk issuing the license returns it, certified as having been recorded, to the party, after he has returned it (§ 6141) : Arlt. 4619. (D) The person solemnizing maltes a certificate (as in B above), and returns it as in $ 6141 : N.C. ; Ky. ; Men. G. L, 858 ; La. D. 2205. (E) This certificate may be returned by any party to the clerk of the city or town where the marriage took place or where either party resides, within six months of the marriage, and must by him be recorded: N.Y. 2,8,1,14. If the marriage was solemnized by a minister, a certifi- cate to his identity must be appended, made by some magistrate of the county where he resides : N.Y. ib. 15. (F) The person solemnizing gives a duplicate certificate to the one returned, as in $ 6141, to the parties : Pa. 1885,115,1. § 6143. Return of Marriages out of State, When parties living in the State are married out of it, and return to reside in the State, they are required to file a certifi- cate of the marriage, including the facts required to be stated in the notice aforesaid (§ 6120), with the clerk of the county or town where either of them lived: N.H. 180, 6 ; Mass. 145,21 ; Me. 59,7 ; Va. 104,18 ; W.Va. 121,16. It must be verified by the affidavit of one witness present at the ceremony : Va., W.Va. § 6144. Evidence. (See also in Part IV.) lu most states, the record of a marriage made and kept as above in this article prescribed by the person before whom the marriage has been solemnized, or by the clerk or register in a city or town, as prescribed in Art. 613, or a copy of such record duly certified, shall be re- ceived in all courts and places as presumptive evidence of such marriao-e : N.H. 180,12; 181,7; 1883,70,10; Mass. 145,29; Me. 59,16; Vt. 2317; KY. ib. 17; N.J. Marriages, 10; Pa. 1885,115,6; Ind. 5331 ; 111. 89,12; Mich. 6222; Wis.' 4160 ; lo. 2197 ; Minn. 73,97 ; Kan. 61,11 ; Neb. 1,52,16 ; Md. 30,8 ; 1882,357,5 ; Del. V. 16,381,10 ; Mo. 2326 ; Nev. 207 ; Col. 2262 ; Dak. Civ. C. 53 ; Ida. ib. 20 ; Mon. G. L. 863 ; Wy. 81,16 ; Ala. 2680 ; Miss. 1149,1152 ; N.M. 985 ; Ariz. 1900; D.C. 723. So, in several, of the marriage certificate : Mich., Minn., Neb., Nev., Ida. So, the license, duly returned as above, is prima facie evidence of the facts therein stated : Ct. 14,1,4. So, the record, or a copy of certificate of it, from a foreign consul, etc. (§ 6139) : Mass. 145,30. When the fact of marriage is sought to he proved, evidence of the admission of such fact by the adverse party (N.H., Mass., Minn., Mon.), or of general repute (N.H., Mass., 0., Minn.), or of cohabitation as married persons (N.H., Mass., 0., Minn., Kan., Cal., Mon.), or any other circumstantial or presumptive evidence from which the fact may he inferred (Mass., Minn., Mon.), is competent: N.H."-* 181,17; 182,8; Mass. 145,31 ; 0.« 5698; Minn. 73,99; Kan. 33,8; 80,650 ; Cal. 11963(30). A marriage occurring in a foreign state or country may be proved by the acknowledg- ment of the parties, their cohabitation, and other circumstantial testimony : 111." 40,1 1 ; Col." 1097; Mon. G. L. 511. Any marriage may be proved by evidence of cohabitation and reputation: N.H.* 180,17 ; Kan. ; or of acknowledgment : N.H.* Where there is no record, it may be proved by the evidence of two witnesses who were present : Fla. 149,5. In actions for crim. con., indictments for adultery, bigamy, etc., there must be proof of a marriage in fact: N.H. 180,18. Notes. — "In divorce or civil actions only. ^ Except actions for crim. con. 680 MARRIAGE. Art. 615. Suits to Annul and Affirm. § 6150. When Brought. A libel to annul the marriage may be brought (A) in most states whenever the marriaoe is voidable" under § 6113 : Ind. 1025 ; Wis. 2348,2350; lo. 2231; Minn. 62,3; Neb. 1,25,3; Del. 75,2; Va. 105,4; W.Va. 69,4; Tex. 2860 ; Cal. 5082 ; Ore. Civ. C. 489 ; Nev. 214; Dak. Civ. C. 54; S.C. 2028. And also, in most states, (B) whenever it is void" under § 6112 : Ct. 1877,14 Mich. 6225; Wis.; lo. ; Minn.; Kan.; Neb.; Md. 51,8 ; Del.; Va.; W.Va. N.C. 1283 ; Tex. ; Cal. 5080, Amt. ; Ore. Civ. C. 488 ; Nev. ; Wy. 1882,40,3 S.C. ; Ala. 2673 ; La. 113 ; N.M. 997 ; Ariz. 1904. So, specially, (1) for nonage (§ 6110), by the party so under age or his pareut, guardian, or next friend : Vt. 2350 ; N.Y. Civ. C. 1742-3 ; Ind. ; Mich. 6254 ; lo. 2186 ; Neb. 1,25,33; Ky.^ 52,1,5; CaL 5083; Dak. Civ. C. 55; Wy. ih. 26; N.M. ; Ariz. 1933. See § 6151(1) and (5). A marriage may also be annulled (1) by the woman if it took place without the consent of her father, guardian, etc., she being under fourteen at the time, and there having been no consummation or ratification since : N.Y. Civ. C. 1742; (2) by either party, when the former wife or husband of one of the parties was living and such former marriage still in force : N.Y. Civ. C. 1743. And (2) for idiocy (§ 6112, D.), by any relative or a next friend : Vt. 2351, 2353 ; N.Y. ; Ind. ; Mich. 6255 ; lo. ; Neb. 1,25,34 ; Wy. ib. 27 ; Ariz. 1934. And (3) for lunacy (§ 6112, D), by any relative or a next friend of the lunatic : Vt. 2352; 2353 ; Ind. ; Mich. ; lo. ; Neb. ; Wy. ; or, in many, by the lunatic himself, after restoration to reason (see § 6113) : Vt. 2354; Mich. 6256; Wis. 2353 ; Neb. 1,25,35 ; Wy. ib. 28 ; Ariz. 1935. See also § 6151(6). And (4) for force or fraud, by the party injured, his parent, relative, or guardian : Vt. 2357 ; 1882,66 ; N.Y. Civ. C. 1750 ; La. 110 ; Ariz. 1936. See also § 6151(7). So, where there has been a mistake in the person by the party laboring under the mistake : La. And (5) for impotence, by the other party : Vt. 2359 ; N.Y. ; Mich. 6259 ; lo. 2231 ; Neb. 1,25,37; Ariz. 1938. So, in many, (C) whenever the validity of the marriage is doubted (whether as void or voidable); N.H. 182,2 ; Mass. 145,11 ; Me. 60,18 ; Vt. 2347 ; Mich. ; Wis. 2351 ; lo. 2233 ; Minn. ; Neb. ; Del. 75,3 ; W.Va. ; Ky. 52,1,20 ; Nev. ; Wash. 2001 ; Wy. ; Ariz. Every marriage contracted under the other incapacities or nullities enumerated in §§ 6112, 6113 may be impeached either by the married persons themselves or by any person interested or by the Attorney General : La. 113. Notes. — « The state statutes rarely draw the distinction properly between void marriages (those which are absolutely void ab initio at all times and as between any parties) and voidable marriages (those which can be annulled by the parties, etc., but which may be valid until thus annulled). See §§ 6112-3. It is obvious that a suit must necessarily be allowed to annul voidable marriages, whether expressly provided by statute or not, from the nature of the case ; but in void marriages such a suit, being unnecessary, may not always be provided. Throughout this chapter the author has sought to express the law as it is, without regard to the conflicting terminology of the several statutes. & See § 6113, 2, and note ». § 6151. By Whom. Generally such libel to annul may be brought by either party, liis guardian, etc. (and see § 6150) : N.H. ; Mass. ; Me. ; Vt. ; Mich. ; Wis. ; lo. 2232 ; Minn. 62,3 ; Neb. ; Md. ; Del. 75,3 ; Va. ; W.Va. ; N.C. ; Ky. ; Wy. ; Ariz. For citations, see § 6150. But not, for cause (1) of nonage (§ 6112 C), by the party of the age of consent at the time: Vt. 2150; N.Y. Civ. C. 1744 ; Pa. Divorce, 11 ; Ind. 1025 : Mich. 6254 • SUITS TO ANNUL AND AFFIRM. 681 Wis. 2354; Minn. 62,5 ; Kan. ; Neb. 1,25,33; Va. ; Ky. ; Cal. 5083; Ore. Civ. C. 489 ; Dak. Civ. C. 55; Wy. 1882,40,26; Ariz. 1933. Nor for cause. (2) of idiocy or lunacy by the other party, if he knew of such in- sanity at the time : Ind., Wis., Minn. In several, (3) not by the other party in any case : Kan., Ore. Compare § 6150. (4) Not for cause of impotence by the party impotent : Wy. ib. 30. (5) For bigamy, it may be brought by either party during the life of the other, or by the former husband or wife : N.Y. Civ. C. 1745 ; Dak. ; La. 116. (6) For idiocy or lunacy, (§6113,3) by the party injured, or a relation or guardian, at any time before the death of either : Cal., Dak. Or, for idiocy only, by any relative of the idiot who has an interest to avoid the marriage, during the lifetime of either party: N.Y. Civ. C. 1746,1748. Or, for lunacy only, by any such relative at any time during the continuance of the lunacy or after the death of the lunatic in that condition and during the life of the other party : N.Y. ib. 1747. (7) For force or fraud (§ 6113,4) by the injured party within four years after discovering the fraud, or four years after the marriage, if obtained by force : Cal. ; Dak. ; La. 114. Not for cause of force or fraud, by the guilty party: Ore. § 6152. "Where Brought. Such suit to aauul (or affirm) a marriage may be brought notwithstanding the mai'riage was solemnized out of the State, if the libellant had his domicile in the State at the time, and also has it there when the libel is filed : Mass. 145,11. They are brought in the same court in which libels for divorce are heard : Ct. ; Ind. ; Wis. 2348; lo. 2232 ; Deh 75,2; and so probably, in other states. So, in several, in the superior court of the county where the parties, or one of them, reside: Mich. 6225 ; Minn. 62,3 ; Neb. 1,25,3 ; Md. 51,8 ; Wy. ib. 3 ; B.C. 2028. Or in the Court of Chancery : Ky. 52,1,5 ; Wy. § 6153. Effect. In such suit, the maiTiage will be declared void or affirmed by the court: N.H., Mass., Me., Vt,, Mich., Minn., Neb., Md., Va., W.Va., Ariz. For citations, see § 6150. And the decree is conclusive upon all persons : N.H., Mass., Mich., Wy. But the decree does not afiect the rights of the respondent unless he was personally notified, or answered : Me. The judgment of uuUity is conclusive only upon the parties to the action and those claiming under them' : Vt. 2361 ; N.Y. Civ. C. 1754; Cal. .5086 ; Dak. Civ. C. 58. And if pronounced during the lifetime of the parties, it is conclusive in all courts and pro- ceedings : Vt., N.Y. The parties are deemed single : Vt. 2391. They may marry again : Vt. A marriage once declared valid in such suit cannot afterwards be questioned for the same cause, directly or collaterally : Ore. Civ. C. 488. A marriage is always presumed valid, until the contrary be proved : W.Va. 69,4. § 6154. Children, Alimony, etc. In these suits the court has generally the same power that it has in suits for divorce to decree for the care, custody, and mainten- ance of minor children of the parties (§§ 6244,6245): N.H. 182,11; Mass. 145,15; Ct. 1877,14 ; Wis. 2362 ; lo. 2232. In case either party entered into such marriage in good fiiith, supposing the other capable, the court may decree to the innocent party compensation as in cases of divorce : lo. 223G. The court awards the custody of children of a marriage annulled (1) for fraud or force to the innocent parent ; and may also provide for their education and mainten- ance out of the property of the guilty party: Vt. 2358; N.Y. Civ. C. 1751; Mich. 6258 ; Neb. 1,25,36 ; Cal 5085 ; Dak. Civ. C. 57 ; Wy. ib. 29 ; Ariz. 1937. So (2) when annulled for bigamy : N.Y. Civ. C. 1745. § 6155. Trial. In two states, no marriage can be declared void solely on the declarations or confessions of the parties ; but the court shall require other satisfactory 6S2 DIVORCE. evidence of the facts on which the allegation of nullity is founded : Vt. 2360 ; ]^.Y. Civ. C. 1753 ; and compare § 6225. A jury trial may be demanded, except when the cause alleged is impotence : N. Y. ; Mich. 6622. § 6156. Limitation of Time. Suit to annul (A) for impotency must be brought (1) within two years of the marriage: Vt. ; N.Y. Civ. C. 1752; Mich.; Neb.; Wy. For citations, see § 6150. (2) Within four years thereafter : Cal., Dak. (B) For want of legal age, it must be brought within four years after arriving at the a,(Te of consent : Cal., Dak. Within six months, thereafter : lo. (C) For force or fraud, it may be maintained at any time, during the life of the other party, by the parent or guardian of the injured party or his interested relative : N.Y. See § 6151(7). § 6157. Suits to Affirm Marriages in similar cases are provided for in many states, when the validity of the marriage is denied or doubted by either party, to be brought by the other ; and a decree affirming the marriage is conclusive on all parties "concerned : Mass. ; Vt. 2320 ; Mich. 6226 ; Wis. 2352 ; lo. 2233 ; Neb. 1,25,4 ; Del. 75,3 ; Va. 105,5 : W.Va. 69,4 ; Ky. ; Ore. Civ. C. 490 ; Wy. 1882,40,4 ; S.C. 2027; Ariz. 1905. See also § 6150 for citations. § 6158. Effect on Property. Geuerally, upon a decree annulling a marriage, the con- sequences as to property follow as in case of divorce, see $ 6247, But the laws of Wiscon- sin specially provide that upon such decree, the court may make provision for restoring to the wife the whole or such part as it deem just of any estate w^hich the husband may have received from her, or the value thereof: Wis. 2371. It may compel him to disclose what estate he may have received, and how he disposed of it : Wis. CHAPTER III. — DIVORCE. Art. 620. Absolute Divorce. — (A) Causes. § 6200. Note. By absolute divorce is meant a divorce which puts the parties back in the position of single persons (except so far as their rights to property, re-marriage, etc., may be affected) without necessarily rendering their issue illegitimate, or the mar- riage invalid while it lasted. For cases of annulling marriage, see Art. 615. For citations to this article, see generally in § 6201. Absolute divorce is in most states termed divorce a vinculo, or from the bond of marriage : Mass., Me., Vt., R.I., N. J., Pa., Mich., Wis., lo., Minn., Neb., Md., Del., Va., W.Va., N.C., Ky., Tenn., Mo., Ark., Tex., Nov., Ida., Wy., Ala., Miss., Fla., Ariz,, D.C. ; in one other, total divorce : Ga. 1711 ; or dissolution of the marriage : Ore, Civ. C. 491 ; Uta. ; or divorce (simply, there being generally, in these states, no limited divorce) : 0.; Ind. ; 111. 40,1 ; Cal. 5090; Col.; Wash. ; Dak. Civ. C. 59 ; Mon. ; Fla, 93,3. South Carolina and ISTew Mexico have no divorce laws; though marriages may in a few cases be annulled under Art. 615. Throughout this chapter, the sign * means that the provision so noted applies also to cases of limited divorce ; f that it applies also to cases of dissolution of marriage under Art. 615 ; I that it applies also to cases of separate maintenance under Art. 635. § 6201. Causes. An absolute divorce may be decreed in favor of the inno- cent or injured party, for the following causes : (1) in all states having divorce laws, for adultery of either party committed subsequent to the marriage (see ABSOLUTE DIVORCE. -(A) CAUSES. 683 § 6202, in detail) : KH. 182,3 ; Mass. 146,1 ; Me. 60,2 ; Vt. 2362 ; E.I. 167,2 ; Ct. 14,3,1 ; 1878,71 ; N.Y. Civ. C. 1756 ; N.J. Divorce, 3 ; Pa. Divorce, 1 ; 0. 5689 ; Iiid. 1032 ; 111. 40,1 ; Mich. 6228 ; Wis. 2356 ; lo. 2223,4 ; Minn. 62,6 ; Kan. 80,639 ; Neb. 1,25,6 ; Md. 51,12 ; Del. 75,1 ; Va. 105,6 ; W.Va. 69,5 ; N.C." 1285 ; Ky.« 52,3,1 ; Tenn. 3306; Mo. 2174; Ark. 2556 ; Tex." 2861 ; Cal. 5092 ; Ore. Civ. C. 491 ; Nev. 1875,22 ; Col. 1093 ; Wash. 2000 ; Dak. Civ. C. 60 ; Ida. 1874-5, p. 639,4 ; Men. a. L. 507 ; Wy. 1882,40,5 ; Uta. 1151-2 ; 1878,1 ; Ga. 1712 ; Ala. 2685 ; Miss. 1155 ; Fla. 93,4 and 7 ; La. D. 1190 ; Civ. C. 139 ; Ariz. 1907 ; D.C. 738. (2) In nearly all, for impotency of either party (§ 6203) : N.H., Mass., Me., E.I., N.J., Pa., 0., Ind., Ill, Mich., Wis., Minn., Kan., Neb., Md., Del., Va., W.Va., N.C., Ky.,* Tenn., Mo., Ark., Ore., Nev., Col., Wash., Ida., Mon., Wy., Uta., Ga., Ala., Miss., Fla,, Ariz., D.C. ; (3) in nearly all for desertion of either party by the other (§ 6204):'N.H. ; Mass.; Me.; Vt. ; E.I.; Ct; N. J. ; Pa.; 0.; Ind.; Ill; Mich. ; Wis. ; lo. ; Minn. ; Kan. ; Neb. ; Md. ; Del. ; Va. ; W.Va. ; Ky. ; Tenn. ; Mo. ; Ark. ; Tex. ; Cal. ; Ore. ; Nev. ; Col. ; Wash. ; Dak. ; Ida. ; Mon. ; Wy. ; Uta. ; Ga. ; Ala. ; Miss. , Fla. 93,7 ; La. ; Ariz. ; D.C. (4) In nearly all, for cruelty of either party (§ 6205) : N.H. ; Mass. ; Me. Vt. ; E.I. ; Ct. ; Pa. ; 0. ; Ind. ; 111. ; Mich. 6230 ; Wis. ; lo. ; Minn. ; Kan. Neb. ; Del. ; Ky. ; ' Tenn. ; Mo. ; Ark. ; Tex. ; Cal. ; Ore. ; Nev. ; Col. ; Wash. Dak. ; Ida. ; Mon. ; Wy. ; Uta. ; Ga. ; Ala. ; ' Miss. ; Fla. ; La. ; Ariz. ; D.C. (5) In nearly all, for intoxication habit, in either party (§ 6206) : N.H. Mass ; Me. ; E.L ; Ct. ; 0. ; Ind. ; 111 ; Mich. ; Wis. ; lo. ; Minn. ; Kan. ; Neb. Del. ; Ky. Feb. 4, 1880 ; Tenn. ; Mo. ; Ark. ; Cal. ; Ore. ; Nev. ; Col.; Wash. Dak. ; Ida. ; Mon. ; Wy. ; Uta. ; Ga. 1713 ; Ala. ; Miss. ; Fla. ; La. ; Ariz. ; D.C. (6) In many, for failure by the husband to support the wife (§ 6207) : N.H., Mass., Me., Vt, E.L, Ind., Mich., Neb., Del.,'^ Tenn., Nev., Col., Wash., Ida., Wy., Uta., Ariz. So, for " wilful neglect : " Cal., Dak. (7) In nearly all (see also § 6112) for sentence to imprisonment in the State prison, etc., or conviction for a crime, of either party (§ 6208) : N.H., Mass., Vt, E.L, Ct, Pa., 0., Ind., 111., Mich., Wis., lo., Minn., Kan., Neb., Del., Va., W.Va., Ky., Tenn., Mo., Ark., Tex., Cal., Ore., Nev., Col., Wash., Dak., Ida., Mod., Wy., Uta., Ga., Ala., Miss., La., Ariz. (8) In a few, for disappearance of either party (§ 6209) : N.H., Vt., E.I., Ct. (9) In several, for various other marital offences (§ 6210) : R.L, Ct., 0., Kan. (10) In a few, when either party joins a religious sect believing marriage unlawful : N.H. ; Mass. 146,2 ; Ky. (11) In a few, when either party has attempted the life of the other by poison or other means showing malice : 111., Tenn. (12) In a few, when the husband has been guilty of such conduct as to constitute him under the statute a vagrant: Mo., Wy. (13) In many, for any cause rendering the marriage orighially void or voidable (§§ 6112,6113): R.I., Md. So, specially, (a) because the marriage is incestuous (§ 6111): N.J. ; Pa. i6. 2 Ga. ; Miss. ; Fla. ; or (/3) bigamous, either party having another wife or husband living N.J. Divorce, 2 ; Pa. ib. 1 ; 6. ; 111. ; Kan. ; Tenn. ; Mo. ; Ark. ; Col. ; Mon. ; Miss. 1156 Fla. 93,5; D.C. ; see § 6116; or (y) when either party was mentally incapable at the time of marriage : Ga, ; Miss. 1157 ; D.C. Or (8) when the wife was under the age of fourteen and the marriage was without the consent of her parents or guardian, and has not been voluntarily ratified on her part after she liad attained the age of fourteen : Ida. ; Ariz. 1944,1953. (e) When the 684 DIVORCE. marriage was procured when the wife was under sixteen, or the husband under eighteen, and has not been voluntarily ratified : Del.'' (0 Iii several, when the marriage was originally procured by fraud or force : Ct. ; Pa. Divorce, 7 ; 0. ; Kan. ; Ky. ; Wash. ; * Ida. ; Ga. ; Ariz. Provided, it has not subsequently been confirmed by acts of the inj ured party : Pa. (14) In many (a) when the woman has been guilty of fornication before marriage, and this was unknown to the husband at the time of marriage ■/ Aid. So, (;8) when she was, unknown to the husband, enceinte by a person not the husband, at the time of mar- riage ■/ Io.» 2224 ; Kan. ; Va. ;« W.Va. ; * N.C. ; Ky. ; Mo. ; Tenn. ; Wy. ; Ga. ; Ala. 2686; Miss. Or (y) was a notorious prostitute •/ Va.,^ W.Va.* Or, to the wife, when the husband had been a notoriously licentious person, unknown to the wife : W.Va.* (15) In a few, for any cause, or indefinite causes, at the discretion of the court (§ 6213). (16) In a few, when the parties have voluntarily lived separate for a certain period (§ 6212) : Wis.,* Ky.'' (17) In several, when the other party has obtained a divorce in another state, (at the discretion of the court, in Ohio, Michigan, Arizona) : 0. ; Mich. ; Fla. 93,8 ; Ariz. (18) When either party since the marriage has become incurably insane : Ark. (19) For concealment by either party from the other of any loathsome disease existing at the time of marriage, or for contracting such afterwards : Ky. In New Hampshire, no divorce will be granted for any cause, except adultery, which does not exist at the time of the petition : N.H. 182,4 ; and see, for other states, below in this article. Notes. — "■ Of the wife only : see § 6202. ^ On petition of either party. <^ On petition of the wife only. ^ Or a limited divorce may be granted, at the discretion of the court. * But not when the other party has cohabited with him or her since, after knowledge of such cause for divorce. / On petition of the husband only, o But not if the husband have an illegitimate child then living, un- known to the wife. § 6202. Adultery, (a) A divorce for this cause will, in many states, not be decreed when committed by both parties (compare § 6217) : Me. 60,2 ; N.Y. Civ. C. 1758 ; KJ. Divorce, 30 ; Pa. Divorce, 22 ; Ind. 1033 ; 111. 40.10 ; Minn. 62,9; Del. 75,7; Tenn. 3318; Mo. 2181 ; Ark. 2564; Tex. 2865; Ore. Civ. C. 494; Col. 1096 ; Mon. G. L. 510 ; Ala. 2690 ; Miss. ; Fla. 93,6. And, in a few, adultery is only a cause of divorce when committed by the wife : X.C, Ky., Tex.; and when she is "taken in adultery:" Tex. But it is cause when com- mitted by the husband if he actually abandon the wife and live in adultery with another woman : N.C., Ky., Tex. Nor (B) when the complainant consented thereto (compare § 6215) : N.J. ; Ind. ; 111. 40,10 ; Mich. 6261 ; Wis. 2360 ; Minn. 62,9 ; Neb. 1,25,39 ; Va. 105, 11 ; W.Va. 69,10 ; Mo. ; Ark. ; Ore. ; Ga. 1715 ; Ala. 2690 ; Ariz. 1940. So, in many, not when committed with connivance of the complainant : Pa. ; Ind. ; Mich. ; Wis. ; Minn. ; Neb. ; Va. ; W.Va. ; Mo. ; Tex.° 2865 ; Ore. ; Wy. ih. 32 ; Ala. ; Miss. ; Fla. ; Ariz. Nor when "he exposed her to lewd company, whereby she became ensnared : " Pa., Tenn., Tex.° Nor when he allowed her prostitution (and, in Tennessee, received hire for it) : Del., Tenn. No divorce for adultery will, in several, be decreed unless suit was commenced (1) within a year of the discovery thereof; Ore., Wash. ; (2) within two years there- after: Ind. ; Cab 5124 ; (3) within three years: Wis., Minn., Va., W.Va., Wy. ; (4) five years: N.Y., Mich., Neb., Ariz. Lewd and lascivious behavior on the part of the wife, such as proves her unchaste, is cause for divorce without actual proof of adultery : Ky.« Note. — » When the husband is the libellant. ABSOLUTE DIVORCE. — (A) CAUSES. 685 § 6203. Impotence is, in most states, cause for divorce only when it existed at the time of marriage and has been continued since : N.H. 182,4 ; N.J. Divorce 4 ; Pa. Divorce, 1 ; Ind. ; 111. ; Mich. 6228 ; Neb. 1,25,6 ; Md. ; Del.'; Va. ; W.Va. \ KG. ; Tenn. ; Mo. ; Ark. ; Ore. ; Nev. 1875,22 ; Col. 1093 ; Ida. ; Mon. ; Wy • Uta. ; Ga. 1712 ; Ala. ; Ariz. ; D.C. " Such impotency or malformation as prevents sexual intercourse : " Ky., Tenn. It must be incurable : N.J., Va., W.Va., Ala. It must be " natural " impotence : Pa., Va., W.Va., Tenn., Ida., Mon., Miss., Fla. It may be for impotence caused by immoral conduct subsequent to the marriage : Col 1835 p. 189. ' An action for divorce for this cause must be instituted within two years after the marriage: Neb. 1,25,37; Ida. ib. 5 ; Ariz. 1954. And compare § 6156. § 6204. Desertion. It must be continued for a term of five years (or, in Massachusetts, Maine, Vermont, Conneccicut, New Jersey, Ohio, Minnesota, Mary- land, Delaware, West Virginia, Texas, Oregon, Georgia, three years ; and in Pennsylvania, Indiana, Illinois, Michigan, Iowa, Nebraska, Tennessee, Alabama, Mississippi, Arizona (1907), District of Columbia, two years; in Wisconsin, Kan- sas, Kentucky, Missouri, Arkansas, California, Nevada, Colorado, Washington, Dakota, Idaho, Montana, Wyoming, Utah, Florida, Arizona (1953), one year) prior to the libel : N.H. ; Mass. ; Me. ; Vt. ; Pt.I. ; Ct. ; N.J. ; Pa." ih. 2 and 5 0. ; Ind. ; 111. ; Mich. ; Wis. ; lo. ; Minn. ; Kan. ; Neb. ; Md. ; Del. ; Va. ; W.Va. Ky. ; Tenn. ; Mo. ; Ark. ; Tex. ; Gal. 5107 ; Ore. ; Nev. ; Col. ; Wash. ; Dak. Ida. ; Mon. ; Wy. ; Uta. ; Ga. ; Ala. ; Miss. ; Fla. ; La.ll90 ; Ariz. ; D.C. "With total neglect of duty: " Me., Ct. "With the intention of abandonment :" Tex. It must be wilful, without reasonable cause : E.I., N.J., Pa., 0., 111., Wis., lo., Minn., Neb., Md., Va., W.Va., Tenn., Mo., Ark., Cal., Ore., Nev., Col., Dak., Ida., Mon., Wy., Uta., Ga., Ala., Miss., Fla., D.C. And in one state, only when either, without sufficient cause and without the consent of the other, has abandoned him or her, and refused to cohabit for the period ahove mentioned : N.H. When the husband has ahandoned the wife, or turned her out of doors : Tenn.* In one state, the court shall decree a divorce for five years' wilful desertion without reasonable cause ; and may do so for a less period : R.I. In the libel of the husband, when the wife has willingly absented herself from her husband without his consent for threp years together : N.H. Or has gone to reside out of the State, and remained absent and separate from her husband ten years together without his consent, and without returning to claim her marriage rights : N.H. When either party has abandoned the other and left the State, without intention of retuni- ing : Col., Mon.= No divorce can be granted for desertion unless the libellant has been for three years a bona fide resident of the State : Ala. 2691. So, two years: Miss. 1163. See $ 6222. When the wife of an alien or citizen of another state, living separate, has resided in the State three years, the husband having left the United States with the intention of becoming a citizen of some foreign country, and not having during that period come into the State and claimed his marital rights, and not having made suitable provision for her support : N.H. " Wilful desertion " is the voluntary separation of one of the married parties from the other with intent to desert : Cal. 5095 ; Dak. Civ. C. 60. Persistent refusal to have reasonable matrimonial intercourse as husband and wife, when health or physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party, when there is no just cause for such refusal, is desertion : Cal. 5096 ; Dak. When one party is induced, by the stratagem or fraud of the other party, to leave the femily dwelling-place, or to be absent, and during such absence the ofi'ending party departs with in- 686 DIVORCE. tent to desert the otlier, it is desertion by the party committing the stratagem or fraud, and not by the other: Cul. 5097; Dak. Departure or absence of one party from the family dwelling-place, caused by cruelty or by threats of bodily harm from which danger would be reasonably apprehended from the other, is not desertion by the absent party ; but it is desertion by the other party : Cal. 5098 ; Dak. Separation by consent, with or without the understanding that one of the parties will apply for a divorce, is not desertion : Cal. 5099 ; Dak. Absence or separation proper in itself, becomes desertion whenever the intent to desert is fixed during such absence or separation : Cal. 5100 ; Dak. Consent to a separation is a revocable act, and if one of the parties afterwards in good fiiitli seeks a reconciliation and restoration, but the other refuses it, such refusal is desertion : Cal. 5101; Dak. If one party deserts the other, and before the expiration of the statutory period required to make the desertion a cause of divorce returns, and offers in good faith to fulfil the marriage contract, and solicits condonation, the desertion is cured. If the other party refuse such offer and condonation, the refusal shall be deemed and treated as desertion by such party from the time of refusal : Cal. 5102 ; Dak. The husband may choose any reasonable place or mode of living, and if the wife does not conform thereto, it is desertion : Cal. 5103; Dak. But if such place or mode selected by the husband is unreasonable and grossly unfit, and the wife does not conform thereto, it is desertion on the part of the husband from the time her reasonable objections are made known to him : Cal. 5104 : Dak. Refusal on the part of the wife to remove with her husband to this State without a reason- able cause, and wilfully absenting herself from him for two years, is a cause of divorce : Tenn. Separation grounded on abandonment by one of the married persons can be admitted only in the case when he or she has withdrawn himself or herself from the common dwelling, with- out a lawful cause, has constantly refused to return to live with the other, and when such refusal is made appear in the manner hereafter directed. The absence of the husband or wife, which has had a lawful cause, although it shall appear that the absentee has not been heard of, cannot authorize a demand of separation, except so far as is provided in $ 6116 : La. 143-4. No libel for desertion will, in Massachusetts, be defeated by a temporary return of the libellee not made in good faith : Mass. 146,20. But the desertion must continue at the time of the petition : N.H. 182,4. Notes. — " The party may apply at the end of six months ; but no divorce will be decreed until the expiration of the time as above, * At the discretion of the court. '^ In case of such abandonment by the husband, only. § 6205. Cruelty. It must he " extreme cruelty : " N.H. ; Mass. ; Me. ; R.I. ; 0.; Ill.;AVis.;« Kan.; Neb." 1,25,7 ; Del.; Cal. 5092 ; Nev. ; Col; Dak. Civ. C. 60 ; Ida. ; Mon. ; Wy. ; Fla. ; Ariz. And " repeated cruelty : " 111. And " extreme cruelty" is defined to be the infliction of grievous bodily injury or grievous mental suffering upon the other by one party to the marriage : Cal. 5094 ; Dak. ; Uta. ; Ariz. "Cruel or abusive treatment :" Mass., Me. But it must be so serious as to injure health or endanger reason : N.H. ; Ala.^ 2687 ; D.C. So cruel as to endanger life : Pa., lo., Ky.,'' Mo., Ark., Ala.,^ D.C. Or when there is reasonable apprehensiou of such treat- ment : Ala.* " Intolerable severity : " Vt., Ct. Any " cruel treatment " at the dis- cretion of the jury : Ga. 1713. "Cruel and inhuman treatment, (a) whether practised by using personal violence or other means : " Ind. ; Mich." 6230 ; Wis. ; Minn. ; Neb. ;" Ariz. (/?) By personal violence only : Miss. " Cruel treatment, outrages, or excesses so as to render their living together insupport- able : " Ky. ; ^ Tenn."' ^ 3307 ; Mo. ; Ark. ; Tex. ; La. " Cruel and inhuman treatment or personal indignities rendering life burdensome : " Pa., Tenn., Mo., Ore., Wash., Wy. This cause must continue at the time of the petition : N.H. 182,4. It must last for six months : Ky.* Notes. — "At the discretion of the court. * Only on petition of the wife. ABSOLUTE DIVORCE. — (A) CAUSES. 687 § 6206. Intoxication. Gross and confirmed habits of intoxication (continued, ill New Hampshire, Ohio, District of Columbia, for three years ; in Illinois, Ore- gon, Idaho, for two years; in Wisconsin, Minnesota, Kentucky, Missouri, Arkan- sas, California, Colorado, Dakota, Montana, for one year) : N.H. 182,3 ; Mass. ; Me. ; RI. ; 0. ; 111. ; Mich. ; Wis. ; Minn. ; Del. ; Ky. ; Mo. ; Ark. ; Cal. 5107 ; Ore. Civ. C. 491 ; Nev. ; Col. ; Wash. ; Dak. ; Ida. ; Mon. ; Ga. (at the discretion of the jury) ; D.C. And it is enough, on the part of the wife, if she be " given " to intoxication, simply : Wis. Habitual drunkenness : Ct., Ind., Mich., Kan., Neb., Cal., Dak., Wy., Uta., Miss., Fla., La., Ariz. *' Such as renders their living together insupportable : " La. Habitual drunkenness, to which the party becomes addicted after marriage : lo., Tenn., Ore., Nev., Ala. And it must be so great as to incapacitate such party from furnishing his or her share to the support of the family : Ky., Nev. " Habitual intemperance" is such as disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a course of great mental anguish upon an innocent party : Cal. 510G ; Dak. § 6207. Failure to Support. This is cause, generally, only in the libel of the wife, and (1) when the husband, being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable maintenance for her: Mass. ; Me.; Vt.; E.I. ; Mich." 6230 ; Wis." 2358 ; Neb." 1,25,7 ; CaL; Dak.; Ida.; Ariz. (2) When he has willingly absented himself for three years without making such provision : N.H. (3) When for the period of one year he fails to provide the common necessaries of life, such neglect not being the result of unavoidable poverty : Nev., Col., Wy. (4) "Neglect or refusal of the husband to make suitable provision for his family : " Ind., Tenn.," Wash. The neglect must continue three years : Del. ; two years : Ind., Ida. : one year : Cab, Nev., Col., Dak., Wy. So, " wilful neglect " is the neglect of the husband to provide for his wife the common necessaries of life (Uta), he having the ability to do so ; or it is the failure to do so by reason of idleness, profligacy, or dissipation : Cal. 5105 ; Dak. ; Ariz. Note. — "At the discretion of the court. § 6208. Crime. (See also § 6112.) When either party has been sentenced to confinement at hard labor or imprisonment for life (or, in Massachusetts, five years or more ; in Vermont, Michigan," Wisconsin," Nebraska, Arizona, three years ; in Pennsylvania, Idaho, Georgia, two years ; in Minnesota, for any terms) in the State prison or penitentiary or house of correction : * : Mass., Vt., Ct., Pa., Mich.," Wis.," Minn., Neb., Ida., Ga.'^ Ariz. So, in several, when either party has been convicted of a crime (punishable, in New Hampshire, with imprisonment for more than a year), and has been actually imprisoned under such conviction : N.H., 0., Tex. So, in one, " when either party is for crime to be treated as civilly dead : " R.I. 167,1. When either party (subsequent to the marriage) is sentenced to confinement in the State prison : Minn., Kan., Va., W.Va., Wy., La. When either party charged with an infiimnus offence has been indicted, is a fugitive from justice (and has been absent two years, in Virginia) : Va., La. When either party has been convicted of felony or infamous crime:'' Ind., 111., lo., Del., Ky., Tenn., Mo., Ark., Ore., Nev., Col., Mon., Ariz." 688 DIVORCE. When either is thus actually imprisoned in the penitentiary : Wash., Miss. So, for two years, upon a conviction for seven years : Ala. Such conviction must, in several, be after marriage, but for a crime committed at any time : Ind., Wis., lo., Minn., Del. And the conviction may be either in or out of the State : Ind., Del., Ky. But in others, it is cause for divorce if either party has, prior to the mamage and without the knowledge of the other, been convicted of an infamous crime: Va., W.Va., Mo., Wy. A divorce is denied, unless the action be commenced within two years after the tennination of the period of sentence, or after a pardon : Cal. 5124. And no pardon granted shall, as a rule, restore such person to his or her con- jugal rights : Mass. ; Vt. ; Mich. ; Wis. ; Minn. 62,7 ; Neb. ; Del. ; Ya. ; W.Va. ; Dak. Civ. C. 41 ; Wy. ; Ariz. But no suit for divorce can be sustained under this section until twelve months after the con- viction ; nor then, if the convict have been pardoned : Tex. And no suit can be maintained if the person convicted was convicted upon the testimony of the husband or wife : Tex. The suit must be brought during such imprisonment : Vt., 0., Wash. Notes. — " Such conviction renders, in the noted states, the marriage dissolved without any judg- ment of divorce or other legal process. * On application of the other party. « For a crime involving moral turpitude. § 6209. Disappearance. When either party has been absent three years together and has not been heard of : N.H: 182,3 ; so, in others, seven years : Vt., Ct. So, in one, when either party, from absence or otherwise, may be presumed dead : R.T. A divorce may be decreed for any legal cause, notwithstanding the fact that tlie libellee has been continuously absent for such a period, and under such circumstances as to raise a presump- tion of death : Mass. 1884,219. § 6210. Marital Offences. Thus (1) " for gross misbehavior and wickedness of either party repugnant to and in violation of the marriage contract : " R.I. 167,2 ; (2) " for cruel and barbarous treatment by the wife : " Pa. Divorce, 7 ; (3) for any infamous crime involving a violation of conjugal duty : Ct. ; (4) " for any gross neglect of duty : " 0., Kan. ; (5) for committing buggery either before or after the marriage : Ala. See also §§ 6204-5. § 6211. Joining Religious Sect. When either party has separated from the other without his or her consent, and joined with a religious sect or society that professes to believe the relation of husband and wife void or unlawful (and has continued with such sect three years : Mass.), and refused to cohabit with the other : N.H., Mass., Ky. § 6212. Separation. Whenever the husband and wife shall have voluntarily lived en- tirely separate for the space of five years next preceding the commencement of the action, at suit of either party : " Wis., Ky. Note. — ° On petition of either party. § 6213. Omnibus Clause. " For any such misconduct as permanently destroys the happi- ness of the petitioner and defeats the purpose of the marriage relation : " Ct. " When, by reason of his conduct towards her being such as to render it improper for her to live with him, the court are of opinion that it will be discreet and proper to grant the divorce : " Wis. 2358. " For any other cause deemed by the court suflScient, if satisfied that they can no longer hve together : " Wash. " When the case is within the reason of the law, within the general mischief the law is in- tended to remedy, or within what it may be presumed the legislature establishing the foregoing causes would have provided against had they foreseen the specific case : " Ariz. 1953. " For the habitual indulgence of a violent and ungovernable temper : " Fla. § 6214. Collusion. (See also § 6202.) The laws of many states provide that no divorce shall be granted when it shall appear that the adultery (E.I., KJ., ABSOLUTE DIVORCE. — (A) CAUSES. 689 Wis, Mo., Ark., Tex, Ore., Ida, Ga, Fla, Ariz.), absence (R.L), cruelty (E.I, Ore., Ga.), desertion (R.I., Ore., Ga.), intoxication (Ore., Ga.), felony convicted (Ore.), or other cause (Me., E.I., III, Mo., Ark., Cal., Col., Dak., Mon., Wy., Ariz.), was committed or occasioned (1) by collusion of the parties with intent to pro- cure a divorce : Me. 60,2 ; E.I. 167,3 ; N.J. Divorce, 30 ; 111. 40,10 ; Wis. 2360 ; Mo. 2181 ; Ark. 2564 ; Tex. 2865 ; Cal. 5111 ; Col. 1096 ; Dak. Civ. C. 61 ; Ida. 1874-5, p. 640,4 ; Mon. G. L. 510 ; Wy. 1882,40,7 ; Ga. 1715 ; Fla. 93,6 ; Ariz. 1909 ; or (2) by the procurement of the libellant : KY. Civ. C. 1758 ; Ore. Civ. C. 494 ; Ariz. 1940. So, in several, iu no case where there is collusion between the parties to procure a divorce : Me. 60,2 ; Mich. 6232; Neb. 1,25,9 ; Del. 75,6 ; Wy. And see § 6225. Collusion is an agreement between husband aud wife that one of them shall commit, or ap- pear or be represented in court as having committed, acts constituting a cause of divorce for the purpose of enabling the other to obtain a divorce ; Cal. 5114 ; Dak. § 6215. Connivance. So, no divorce can be granted for any cause where there was "connivance" between the parties: Cal. 5111 ; Dak. Civ. C. 61. And connivance is defined to be the coiTupt consent of one party to the commission of the acts of the other constituting the cause of divorce: Cal. 5112; Dak. Civ. C. 61. Such corrupt consent is manifested by passive permission, with intent to connive at or actively procure the commission of the acts complained of: Cal. 5113 ; Dak. So, no divorce can be granted for any act to which the libellant consented : 111., Mo., Ark. For adultery, see § 6202. § 6216. Condonation. There can be no divorce for adultery (or, in Oregon and Georgia, for desertion ; or, in Oregon and Georgia, for cruelty ; or, in Oregon and Georgia, for intoxication ; in Oregon and Montana, for a conviction of felony ; in California and Dakota, for any cause ; in Kentucky, for lewdness), in most states, (1) when the persons voluntarily cohabited after knowledge of the fact : N.Y. Civ. C. 1758 ; Pa. Divorce, 22 ; Ind. 1033 ; Mich. 6261 ; Wis. 2360 ; Minn. 62,9; Neb. 1,25,39; Del. 75,7 ; Va. 105,11; W.Va. 69,10 ; Ky. 52.3,4 ; Tenn. 3318 ; Tex. 2865 ; Ore. Civ. C. 494 ; Ida. 1874-5, p. 640, § 4 ; Mon. ; Wy. il. 32 ; Ga. 1715 ; Ala. 2690 ; Miss. 1155 ; Ariz. 1940. (2) Or when the forgiveness of the injured party is proved by express proof : N.Y ; Mich. ; Wis. ; Minn. ; Neb. ; Ore. ; Nev. 1875,22 ; Wy. ; Ariz. (3) When there has been "condonation : " Pa. Divorce, 21 ; Del. 75,7 ; Cal. 5111 ; Wash. ; Dak. Civ. C. 61. (4) When there has been reconciliation of the parties : La.* 152,154. Condonation is the conditional forgiveness of a matrimonial offence constituting a cause of divorce: Cal. 5115; Dak. The following requirements are necessary to condonation : (1) A knowledge on the part of the condoner of the facts constituting the cause of divorce ; (2) reconciliation and remission of the offence by the injured party ; (3) restoration of the offending party to all marital rights : Cab 5116; Dak. Condonation implies a condition subsequent that the forgiving party must be treated with conjugal kindness: Cal. 5117 ; Dak. Where the cause of divorce consists of a course of offensive conduct, or arises in case of cruelty from successive acts of ill-treatment which may aggregately constitute the offence, co- habitation or passive endurance or conjugal kindness shall not be evidence of condonation of any of the acts constituting such cause, unless accompanied by an express agreement to con- done : Cal. 5118 ; Dak. In such cases, condonation can be made only after the cause of divorce has become com- plete as to the acts complained of: Cal. 5119 ; Dak. A fraudulent concealment by the condonee of facts constituting a different cause of divorce from the one condoned and existing at the time of condonation avoids it : Cal. 5120 ; Dak. 44 690 DIVORCE. Condonation is revoked and the original cause of divorce revived (1) when the condonce commits acts constituting a like or other cause of divorce ; (2) when the condonee is guilty of great conjugal unkindness, not amounting to a cause of divorce, but sufficiently habitual and gross to show that the conditions of condonation had not been accepted in good faith, or not fulfilled : Cal. 5121 ; Dak. So, " divorces must be denied, upon showing limitation or lapse of time : " Cal. 5111 ; Dak. Civ. C. 61. In detail, a divorce is refused (1) "in all other cases (see $^ 6201-6208 for special provi- sions), when there is an unreasonable lapse of time before the commencement of the action : " Cal. 5124 ; Dak. Civ. C. 65. See § 6223. "Unreasonable time "is such delay as establishes the presumption that there has been connivance, collusion, or condonation of the offence, or full acquiescence in the same, with in- tent to continue the marriage relation. This presumption may be rebutted by showing reason- able grounds for the delay : Cal. 5125-6 ; Dak. Except as above, there are no limitations of time for commencing actions for divorce : Cal. 5127 ; Dak. Civ. C. 66. The plaintiff is still at liberty to bring a new suit for causes arising since the reconciliation, and therein make use of the former motives to corroborate his new action : La.* 153. § 6217. Recrimination. (For the case of Adultery, see § 6202.) In a few states, there generally can be no divorce for any cause (1) when the other party was guilty of like conduct : Mich. 6232 ; Neb. 1,25,9 ; Wy. 1882,40,7 ; Ariz. 1909; (2) when there is [successful] "recrimination:" Cal. 5111 ; Dak. Civ, C. 61. So, specially, not for cause of (1) cruelty: Ga. 1715 ; (2) desertion : Ga. ; (3) in- toxication : Ga. And in all cases the libellee may plead the conduct of the libellant in defence ; and the court (or, in Georgia, the jury), may, on examination of the whole case, refuse a divorce : Tenn.« .3324 ; Ga. 1715. When the parties appear to be in equal wrong, the court may, in its discretion, refuse a divorce : Kan. 80,643. Compare also § 6228. Recrimination is a showing by the defendant of any cause of divorce against the plaintiff, in bar tif the plaintifiPs cause of divorce : Cal. 5122 ; Dak. Condonation of a cause of divorce, shown in the answer as a recriminatory defence, is a bar to such defence, unless the condonation be revoked, as provided in § 6206, or two years have elapsed after the condonation and before the accruing or completion of the cause of divorce against which the recrimination is shown : Cal. 5123 ; Dak. Note. — " When the cause alleged is cruelty, or desertion, or failure to support. Art. 622. Absolute Divorce. (B) Proceedings. § 6220. Jurisdiction. By the laws of two states, no divorce can be decreed (ex- cept as in § 6222), if the parties have never lived together as husband and wife in the State: Mass. 146,4; Vt. 23G3. A divorce may in all cases be granted where the respondent is a resident of the State, and has been personally served : lo. 2221. § 6221. Cause occurring Abroad. In several states, no divorce can be decreed for a cause occurring out of the State, unless (1) before such cause the parties had lived together as husband or wife in the State : Mass. 146,4 ; Me. 60,2 ; Vt. 2363 ; or (2) unless one of them (in Maine, New Jersey, Kentucky, and Arkansas, the libellant) lived in the State at the time the cause occurred : Mass. ; Me. ; Vt. ; N.J." Divorce, 1 ; Ky. 52,3,4 ; Ark. 2562 ; Mon. G. L. 509 ; or (3) unless the marriage was solemnized within the State : Me. ; N.J. ; Ore." Civ. C. 492 ; or (4) unless such cause was a legal cause for divorce in the state where it occurred : Ky., Ark. ; (5) unless the party libel- ABSOLUTE DIVORCE. — (B) PROCEEDINGS. 691 lant has resided a certain time in the State: Md. 51,14. So in other states: see § 6222. Note. — « And such person Ubellant must in these states be resident in the State also at the time of filing the bill. § 6222. Residence Limitations. A divorce may be procured for any cause allowed by law whether it occurred in or out of the State (A) if the libellant (or, in New Hamp- shire, Connecticut, and Virginia, the libellee also) has in good faith resided in the State for a certain period before filing the libel; thus, (1) five years: Mass. 146,5; (2) three years: Ct. 14,3,4; (3) two years : Vt.«'*2365 ; Ind. 1031 ; Md. 51,14*; N.C. 1287 ; Tenn. 3308 ; Fla. 93,2 ; D.C.<= 740 ; (4) one year : KH.'^- <= 1883,14 ; Me. 60,2 ; Vt. 2367; E.I. 167,15; Pa. Divorce, 3,8-10; 0. 5690 ; 111. 40,2 ; Mich. 6231 ; Wis. 2359; To. 2221; Minn. 62,8 ; Kan. 80,640; W.Va. 1882,60; Ky. 52,3,4; Civ. C. 423; Mo. 2177 ; Ark. 2562 ; Ore.''-" Civ. C. 492-3 ; Col. 1095 ; Wash. 2002 ; Mon. G. L. 509 ; Uta. 1151; 1878,1; Ala.'^ 2693 ; Miss. 1162; Ariz. 1908; (5) six months: Ind.;' Neb. 1,25,8 ; Tex.' 2862 ; Cal. 5128 ; Nev.'' 1875,22 ; Ida. 1874-5, p. 639,3 ; Wy. 1882,40,6; N.M. 2282; (6) ninety days: Dak. Civ. C. 67. (7) Such residence on the part of libellant or libellee as above, if at the time of the Ubel, is sufficient: N.H. ; ''•« Va. 105,8; W.Va. 69,7; or, if at the time of marriage the parties were resident in the State, three years of such residence is enough : Mass. (B) In several, it is sufficient (1) if either party resided in the State at the time of the injury complained of: N.J. Divorce, 1 ; 111.; Mo. ; Col. 1095; (2) if the hbellant so resided : Ct., Md. Unless it appears that the libellant has removed into the State for the purpose of obtaining the divorce, in which case it will not be granted : Mass., lo. So, the libellant must be au actual bona fide inhabitant of the State at the time of the libel : N.H. ;-^ Tex. 2862. (C) In several, the courts have always jurisdiction when the marriage took place in the State : Me. 60,2 ; N.Y. Civ. C. 1756 ; N.J. ;'' Mich. ; Wis. ■,^ Neb. ;^ Ore." Civ. C. 492 ; La. 142,1198 ; or when the parties have cohabited in the State since : Me. So, in a few, only when the libellant has resided in the State since the marriage : ]\Iich., Neb., Ariz. ; or when the libellee lives in the State : lo., Nev. Nor is such residence necessary when the cause is intoxication, cruelty, or such other mis- conduct as permanently destroys the happiness of the libellant and defeats the purposes of the marriage relation, and the petitioner was domiciled in the State at the marriage, and has returned to the State with the intention of permanently residing there : Ct. Nor when the cause is adultery committed while the plaintiff was a resident of the State : N.Y.,'' Wis., Minn. So, if both parties were so resident at the time of the adultery : N.Y. (D) A divorce may be granted without regard to the residence of the parties, if the injury complained of was committed in the State : N.Y.," 111., Mo., Nov., Col., Mon. See also § 6226. So, in case of adultery there committed, if either party is a resident at the time of bringing action : N.J. Divorce, 1 ; or for desertion, if either party has been a resident for three years, there being an oath of good faith annexed to the bill : N.J. But, in all others, there can be no divorce for any cause nnless the libellant, etc., has resided in the State as above ; and so, expressly, in Ehode Island. So, a divorce may be granted for adultery, cruelty, or desertion, if the libellant have resided in the State one year, notwithstanding the parties were domiciled out of the State at the time of the adultery, etc., complained of: Pa. Divorce, 6,4,9-10. (E) A divorce may be granted, on petition by the wife, if the husband have resided in the State for one year next preceding the commencement thereof: Wis. (F) In actions for divorce, the presumption of law that the domicile of the husband is the domicile of the wife does not apply ; after separation each may have a separate domicile, de- pending for proof upon actual residence, and not upon legal presumptions : Cal. 5129 ; Dak. Civ. C. 68. So, in other states. Notes. — « "When the cause is adultery, cruelty, or desertion, and occurred out of the State. * And the libellant must have resided in the county one year. <= Applies also in limited divorce. 692 DIVORCE. ^ The libellant being an inhabitant of the State. « And also the libellee. /The libellee having personal service within the State. 9 But, further, the plaintiff must have resided in the State from the time of such marriage to the commencement of the action. * The libellee being a non-resident. * The libellant must have resided such time in the county where the libel is filed. § 6223. Limitation of Time. (See also ^ 6156,6202-3,6216.) In one state, the libel- lant must specify tliat the facts have been known to him or her six months prior to the filing of the bill : N.C. 1287 ; or, if a woman, the affidavit may state that the husband is about to remove his efi'ects from the State, whereby she may lose her alimony : N.C. But, nevertheless, a woman intending to file a bill for divorce may file afladavit of such intention before such period of time has elapsed after the cause, and may then reside separate, and have her wages for her own use, provided the bill be duly filed within thirty days after such time : N.C. No divorce can be had unless for a cause which existed (1) within five years of the com- mencement of the suit: Ky. 52,3,4 ; Ark. 2562; (2) within one year thereof: Ore. Civ. C. 494. § 6224. Service and Proceedings. (See, generally, in Part IV.) (1) In a few states, the notice or service required is the same as in bills in equity : Md. 51,11, See also below. (2) Service is made personally, either in or out of the State, or by publi- cation, if the libellee cannot be found: Pa. Divorce, 12-13; lo. 2221,2618; Minn. 62,12; Neb. 1,25,10; Del. 75,4; Fla. 93,10. (3) Service as in other suits : Ct. 14, 3,2; Kan. 80,641 ; Neb. 1,25,10; W.Va. 69,7; Tenn. 3312; Ala. 2688; Miss. 1164; N.M. 2283 ; D.C. 735. If by publication, a copy of the bill must be mailed to the libellee, unless his residence is unknown to the libellant: Ind., Kan., N.M. (4) Personal service in the State ; if the defendant be out of the State (1) by publi- cation : Mass. 146,9; Me. 60,3; Vt. 2370-2; R.I. 167,18-20; N.Y.* Civ. C. 1774; N.J. Divorce, 8-11 and 13 ; 1878,121 ; 0. 5992-3 ; Ind. 1035-6 ; Nev. 216 ; or (2) by service as in equity cases : Ga. 1717. There must be actual notice (1) if the libellee's residence is known : Me. 60,4 ; Tenn. 3314 ; (2) if the cause of divorce is abandonment : La. D. 1190. The abandonment with which the husband or wife is charged must be made to appear by three reiterated summonses made to him or her from month to month, directing him or her to return to the place of the matrimonial domicile, and followed by a judgment which has sen- tenced him or her to comply with such request, together with a notification of the said .judg- ment, given to him or her from month to month for three times successively. The summons and notification shall be made to him or her at the place of his or her usual residence, if he or she lives in this State, and, if absent, at the place of the residence of the attorney who shall be appointed to him or her by the judge for that pui-pose, at the suit of the husband or wife praying for separation from bed and board : La. 145. Such [other] service may be had as the court shall order or prescribe : N.H. 182,5 ; Mass. ; Vt. 2373; R.L 167,17 and 22 ; Ct. 14,3,3; N.M. All libels for divorce must be continued one term, as of course : Vt. 1884,94; Tenn. 3313; and shall not be heard at any time unless the libellee is present, or it be proven that the libel- lant attempted in good faith to procure his attendance : Vt. So, no divorce can be granted 1)efore ninety days after the return day : Ct. 1880, 23 ; unless the libellee appear : Ct. 1885,35 ; Tenn. So, thirty days : Minn. 62,13 ; Del. V. 17,631. A divorce may be granted after six weeks from service or first publication : 0. 5694. Parties against whom a divorce has been decreed with no other notice than publication may have the same opened at any time, so far as relates to the custody and support of children ; and the decree of divorce itself may be opened within two years ; and until such time it shall not be lawful for the party to marry again : Ind. 10-30. See, generally, in Part IV. In no case of deftiult shall the court grant a divorce (1) unless all proper means have been taken to notify the defendant of the suit : 111. 40,8; (2) and unless the cause of divorce has been fully proven by satisfactory witnesses : 111. ; (3) unless a reasonable time has been allowed the defendant to appear and answer : Minn. The proceedings in divorce suits (except as herein provided) conform to the general rules of proceedings (1) in chancery : N.J. Divorce, 6 ; 111. 40,6 ; Mich. 6234 ; lo. 251 1 ; ABSOLUTE DIVORCE. — (B) PROCEEDINGS. 693 Neb. 1,25,11 ; Va. 105,9; W.Ya. 69,8 ; Ky. Civ. C. 420; Col. 1094; Mon. G. L. 508; Wy. 1882,40,10; Ala. 2688; Miss. 1161; or (2) in law: Mo. 2175; Nev. 219; Uta. 1151 ; 1878,1 ; Ariz. 1911 ; D.C. 732. § 6225. Evidence, (a) Either party raay, in most states, be a witness in di- vorce proceedings : Me. 60,2 ; N.J.« 1881,16 ; Pa.* Evidence, 23 ; 111. 51,5 ; Mich. 6260; Kan.* « 80,650,651 ; Neb. 1,25,10 ; N.C. 1288 ; Ida. ih. 8 ; Wy. 1882,40,8 ; Fla. 1885,3582. See also Evidence, Part IV. But the testimony of either parly can be taken only in open court : Mich. The an- swer is not evidence in the cause : Ala. 2689 ; Miss. 1161. And neither party is competent as a witness to prove the adultery of the other : Mich. ; N.C. 588,1288. The answer of the respondent is not under oath : N.Y. Civ. C. 1757 ; N.J. Divorce, 6 ; 0.<= 5697; III. 40,6; Mich. 6233; Neb. 1,25,10; Ky.= Civ. C. 421; Mo. 2175; Ark.'' 2560; Tex. 2863; Col. 1094; Wy. ; Ala.; Miss.: Ariz.'' 1910,1958. But the libellee must answer on oath if the libellant require it : lud. 1039. No witness is incompetent by reason of relation or alliance with either party ; La. D. 1191. The bill or libel must be signed or an affidavit made by the petitioner : Me. 60,3 ; Vt. 2369 ; R.I. 167,13; Pa. Divorce, 12; Kan. 80,641 ; Deh 75,4. An oath of good faith must be annexed, made by the libellant : N.J. Divorce, 7 ; Pa.; lo. 2221 ; Del. ; N.C* 1287 ; Tenn.* 3311 ; Mo. 2175 ; Miss. But, in several, the confession of neither party can be received in evidence : 111. 40, 9 ; Del. 75,6 ; Tex. Unless the court or jury is satisfied that such confession was made in sincerity, and without fraud or collusion to enable the complainant to procure a divorce : 111. ; Kan. 80,650. So, in some, the admissions of neither party can be received to prove adultery : N.C So, in others, the admission of a respondent of the facts charged in a bill for divorce when he consents to the application shall not be taken as conclusive proof: Md. 51,16 ; Wash. 2003 ; D.C. 737. So, in Georgia, the confessions of a party to acts of adultery and cruelty should be received with great caution, and, if unsupported by corroborating evidence, and made with a view to be evidence in the cause, should not be deemed sufficient proof: Ga. 1716. So, in others, but as to adultery only : Cal. 12079 ; Ore. Civ. C 847. (b) So, in many, no decree of divorce shall be made (1) solely on the declara- tions, confessions, or admissions of the parties (or npon the finding of a referee : KY. Civ. C. 1229 ; Cal. ; Dak. ; Ida. ; Uta. ; Ariz.), but the court shall require other evidence of the facts alleged : KY. Civ. C. 1757 ; O. 5697 ; Mich. 6260 ; Minn. 73,106 ; Neb. 1,25,38 ; Ky. 52,3,3 ; Ark. ; Cal. 5130 ; Dak. Civ. C. 69 ; Ida. ; Wy. ib. 31 ; Uta. ; Ala. 2690; Fla.; Ariz. 1939,1957. No divorce shall be granted (1) without proof: Kan.; N.C. 1288; (2) nor solely upon defaidt of the defendant : N.Y. ; N.J. Divorce, 12 ; 0. 5695 ; Ind. ; 111. ; N.C; Ky. Civ. C. 422; Cab; Dak.; Ida.; Uta. 1154; 1878,1; Ariz. 1957; D.C. 737. But, in cases where the bill, in ordinary cases of equity, would be taken pro confesso, the court on a bill for divorce issues a commission to take testimony ex parte, and decides the case upon proof made thereunder: Md. 51,11; Col. 1097; Mon. G. L. 511. So, the bill is not to be taken pro confesso, but, whether the defendant answer or not, the cause shall be heard independently of admissions of either party, in the pleadings or otherwise : Ilk 40,8 ; Va. 105,9 ; W.Ya. 69,8 ; Ky. 52,3,3 ; Tenn. 3317 ; Ark. 2561 ; Tex. 2863 ; Ida. ; Ala. 3824 : Miss. So, in others, no divorce can be granted upon the testimony of the plaintiff alone ; but all such actions shall be heard in open court upon the testimony of witnesses or depositions, as in other cases : lo. 2222 ; N.C. 694 DIVORCE. lu all cases where the proceedings are ex parte the court (1) must require satisfactory evi- dence of the good conduct of the petitioner, and that he or she is the innocent or injured party : Mo. 2182 ; (2) must see that the grounds are legal and sustained by proof: 111. ; Ga. 1735. The records of a conviction of either party for adultery are evidence in an action for divorce brought by the other : Pa. Divorce, 20. Two witnesses, or one and strong corroborating circumstances, are necessary to sustain the charge of adultery or lewdness : Ky. 52,3,3. Notes. — " When the cause is adultery. * When personal service is made upon the libellee, or •when he appears. " So of aU the pleadings. § 6226. Court. Libels for divorce or annulling a marriage (Art. 615) are heard (1) in the Supreme Court : N.H. 182,5 ; Mass. 146,6 ; Me. 60,2 ; R.I. 167,14-16 ; D.C. 731 ; (2) in the Court of Chancery : N.J. Divorce, I ; Mich. ; Md. 51,11 ; Ky. 52,3,1 ; Tenn. 3309 ; Ala. 2685 ; (3) in the Superior Court : Ct. 1878,71 ; Pa. Divorce, 12 ; 0. 5689 ; Ind. 1031 ; 111. 40,4 ; Mich. ; Wis. 2348 ; lo. 2220 ; Minn. 62,6 ; Kan. 80,639 ; Neb. 1,25,6 ; Del. 75,1 ; N.C. 1282; Tenn.; Mo. 2175 ; Tex. 2860 ; Nev. 1875,22 ; Wash. 2000 ; Dak. Civ. C. 59; Ida. ib. 1-2 ; Wy. 1882,40,5; Ga. 1711 ; Fla. 93,1 ; Ariz. 1941 ; so, in othei's, but on the equity side, or sitting in equity : Va. 105,8 ; W.Va. 69,7 ; Ark. 2559 ; Col. 1094 ; Mon. G. L. 508 ; (4) in the County Court : Vt. 2368 ; (5) in the Probate Court: Uta. 1150. And, generally, in the court for the county (1) in which one of the parties lives ; N.H. 182,5 ; Mass. ; Me. ; Vt. 2366 ; Mich. 6228 ; Wis. 2619 ; lo. ; Minn. ; Neb. ; Md. ; Wy. ; (2) in which the libellee lives (if the libellant has left it, the county in which the parties have lived together, in Massachusetts, Tennessee, Nevada) : Mass. ; Va. ; W.Va. ; Nev. ; Ala. 2692 ; Miss. ; (3) or in which the parties last cohabited : Va. ; W.Va.; Tenn.; Nev.;" Ala.; Miss. ; (4) in which the libellant lives : R.I. 167,16 : Pa. ; 0. ; 111. 40,5 ; Minn. 62,10 ; Kan. 80,54 ; Del. 75,4 ; N.C. 1289 ; Mo. 2175 ; Ark. 2558 ; Nev. ; Wash. 2002 ; Uta. ; Ala. ; ^ Miss.* 1 164 ; (5) in which the cause of divorce arose : 0., Nev. ; (6) in which the wife usually resides : Ky. 52,3,4. Notes. — " When the libellant continues to reside in such county. * When the libellee is a non- resident. § 6227. Trial. If the petition for divorce is undefended, (1) it is the duty of the district attorney to resist the petition : Ind. 1038 ; Ky. 52,3,3 ; Wash. 2010. (2) So, in other states, an attorney is appointed by the court to represent the libellee : La. 141 ; D. 1190. Generally, facts are found by the court, as well as law : Vt. 2368 ; 0. 5695 ; Ky. 52,3,10; Mo. 2175. And, expressly, no jury shall be empanelled in any action for divorce or alimony : Ky. But in some, the divorce, is always found by a jury: N.C. 1288. So, if demanded by either party: Tex. 2863. And, in one, by two successive juries: Ga. 1711. In others, matters of fact if contested may be tried by a jury : Me. 60,8 ; N.Y. Civ. C. 1757; Pa. Divorce, U ; 111.40,7; Minn. 62,14; Tenn. 3316; Tex.; Nev. 222 ; Col. 1097 ; Mon. G. L. 511. So, the court may direct an issue to a jury : N.J. Divorce, 18. The court refers the facts to a commissioner : Del. 75,4. All divorces must be sued for in court, and cannot be the subject of arbitration : La. 140. § 6228. Cross Bill. (Compare also § 6217.) The defendant may in the same action obtain a divorce by filing a cross petition or answer, for any of the causes in Art. 620 mentioned: 0. 5702 ; Ind. 1040 ; lo. 2225 ; Kan. 80,642; Mo. 2176 ; Wash. 2004; Ga. 1718. For cross petitions for alimony, see Art. 628. In such case, if the judgment or verdict be for the respondent, the libellant cannot dismiss his or her suit without the consent of such respondent : Ga. 1719. The respondent in a libel for divorce may generally recriminate and ask a divorce in his or her favor ; and the court (or jury) may so find, to avoid a cross action : Ga. 1718. ABSOLUTE DIVORCE. - (C) EFFECT. 695 § 6229. Form of Decree. All decrees of divorce are iu the first instance to be entered nisi, to become absolute after the expiration of six months ou application of either party, without further notice, unless the court has otherwise ordered for cause on the application of any party interested : Mass. 146,19 ; 1882,223 ; Me. 60,11. So, the decree of divorce may be deferred by the court, for any specified time not exceeding one year, when there appears a prospect of reconciliation : Uta. 1153. In Maine, a new trial may be granted as to the divorce or aUmouy, within three years after the judgment, if the parties have neither cohabited nor either of them contracted a new marriage since : Me. 60,4. So, in one other, except for cause of adultery or crime, no divorce can be granted until one year after a judgment for divorce from bed and board has elapsed w'ithout a reconciliation : La. D. 1192. A decree may be revoked at any time upon joint application of the parties and satis- factory evidence of their reconciliation : Mich. 6263; Minn. 62,27; Ky. 52,3,5; Civ. C. 426; Ark. 2570; Miss. 1158. But thereafter no divorce for a like cause can be granted them : Ky. The decree may either pronounce the marriage null and void from the beginning (as iu Art. 615), or dissolve it forever: Tenn. 3223. § 6230. Foreign Divorces. By the laws of a few states, a divorce decreed in another state or country according to the laws thereof by a court having jurisdiction of the cause and of both parties is valid and effectual in the State : Mass. 146,41 ; Me. 60,15 ; Ind. 1049 ; Del. 75,14. In such case, an order may be made for the care and maintenance of minor children who are inhabitants of the State as in § 6244-6 : Mass. 147,30 ; N.J. Divorce, 24. But in others, when an inhabitant of the State goes into another state or country to obtain a divorce for a cause which occurred in the State while the persons resided there, or a cause which would not authorize a divorce by the laws of the State, a divorce so obtained is of no force or effect in the State : Mass., Me., Del. § 6231. Appeal. Generally, in all cases of divorce, whether the decree be granted or refused, there may be appeal to a higher (the supreme) court : Pa. Divorce, 17; Tenn. 3875; Wash. 2011. So, upon all matters touching alimony, the assignment of property, and custody and support of children (see §§ 6245,6246) :" Cal. 5148 ; Dak. Civ. C. 74. But in some, no appeal or review is allowed, except upon questions of alimony or when the bill Ls dismissed without a final hearing : 0. 5706 ; Mo. 2185. So, a new trial is allowed, as in other cases: Ga. 1723. But no appeal lies (1) after one year from the decree of divorce : Pa. ib. 18 : (2) after six months therefrom : Kan. 1881,126; Neb. 1885,49,2. Art. 624. Absolute Divorce. (C) Effect. § 6240. General Effect. The laws of many states, declare that the effect of an absolute divorce is (1) to fully and completely dissolve the marriage contract as to both parties : Ct. 14,3,2 ; Pa. Divorce, 15 ; 0. 5695 ; Ind. 6248 ; Wis. 2374 ; Minn. 62,29 ; Kan. 80,647 ; Cal. 5090-1 ; Ore. Civ. C. 499 ; Nev. 221 ; Wash. 2008 ; Dak. Civ. C. 59 ; Miss. 1156 ; La. 159 ; D. 1195. (2) To annul the marriage from the time of the verdict, unless :.t be for a cause rendering the marriage void ah initio : Ga. 1726. The guilty party forfeits all rights acquired by the marriage : lo. 2230 ; Mo. 2182 : Uta. 1156. Compare §§ 6242,6248, H. So, of all rights to the property of the other party : Kan. The wife, if the innocent party, may resume her maiden name : Kan. 80,646. It places them in the same situation as if the carriage had never been contracted : Cal., Dak., La, 696 DIVORCE. " All and every the duties, rights, and claims accruing to either of the parties at any time theretofore, in pursuance of the said marriage, shall cease and determine : " Pa. Divorce, 15 ; N.C. 1295. § 6241, Remarriage, etc. (A) After an absolute divorce, either party may, in most states, marry again at any time : Mass. 146,22 ; Vt. 2391 ; Ct. 14,3,2 ; N.Y. 2,8,1,49 ; Pa. Divorce, 15 ; Kan. 80,647 ; N.C. 1295 ; Ky. 52,3,2 ; Tenn. 3323 ; Tex. 2866 ; Ore. Civ. C. 499 ; Wash. 2008 ; and the same would follow in states where the laws are silent, ; see § 6240. Limitations. Except, that the libellee (or either party, in Minnesota and Kansas) cannot in several, marry until two years (in Missouri, five years ; in Vermont, three years ; in Kansas, six months ; or in Nebraska, Oregon, Washington the time allowed for appeal or error) from the final decree : Mass. ; Me. 60,12 ; Vt. ; Kan. 1881,126,1 ; Neb. 1885,49,1 ; Mo. 2182 ; Ore. ; Wash. ; or sooner, by special decree of court : Mo. (B) And in a few, no libellee convicted of adultery can marry again (1) at any time: N.Y. Civ. C. 1761 ; Dak. Civ. C. 64. But the parties may marry each other : N.Y. So, the guilty party cannot marry at any time ; except upon decree of court : Me. (C) So, in other states, as to a person against whom a divorce has been granted for adultery (or, in Maryland, Virginia, for abandonment) the court may decree that he or she is not to marry again, under the pains and penalties of adultery : Md. 51,12 ; Va. 105,14; Miss. 1158. Such decree may, however, be afterwards revoked or annulled at any time : Va. And may be modified upon petition to court and verdict to that effect by a jury : Ga. 1728-30. (D) So, in a few, the whole matter of rights and disabilities of marriage after divorce is left to the jury or court to decide, subject to the revision of the court : Ga. 1727 ; Ala. 2688. (E) The libellant may not marry within two years of the decree except by permission of court; the libellee can never marry within such two years, nor afterwards except upon such order of court : Me. 60,12. (r) In a few states, no wife or husband divorced for his or her adultery can marry the particeps criminis (1) during the life of the former husband or wife: Pa. Divorce, 23 ; Deb 75,12 ; Tenn. 3332 ; (2) at any time : La. D. 1197 ; Civ. C. 161. Such marriage renders the person divorced guilty of bigamy : La. (G-) If the parties marry each other again, the court upon their joint applieati'''^'^ Civ. C. 1759-1761 ; KJ. ; Pa. Divorce, 23; Mich."''^ 6249; Neb."-'^ 1,25,28; Cal.«- "^ 5145; Dak.°'''>'^ Civ. C. 63; Ida.« ib. 6; Wy.''-^ ib. 22; Ariz."' '^ 1928,1955; D.C.« 744. (/3) By the husband : Mass. ; N.J. ; Mich ; Neb. ; Cal. 5144 ; Dak. Civ. C. 62 ; Ida. This would, of course, be law in all states. (3) For desertion (§ 6204) : N.J. (4) For lunacy (§§ 6201,6112): Miss. 1157; D.C. 743. In Delaware, no divorce renders the issue illegitimate, except as specified in $ 6115, where the marriage is void : Del. 75, 1 1 . And in many states, no divorce at all : Me. 60,16 ; 0. 5696 ; Va. 119,7 ; W.Va. 66,7 ; NC. 1295 ; Tenn. 3333 ; Mo. 2171,2174 ; Ark. 2526,2557; Tex. 2866 ; Cal. 6387 ; Nev. 795 ; Dak. Civ. C. 780 ; Ida. Prob. C. 316 ; Mon. Prob. C. 536 ; G. L. 507 ; Wy. 42,8 ; Fla. 93,4 ; La. 158. In others, no divorce, for any cause, renders the issue illegitimate, except as herein and in § 6115 : N.H. 182,10 ; 111. 40,3 ; Neb. 1,25,28 ; Col 1093,1046 ; Ga. 172G ; Miss. 1155 ; Fla. 93,5 ; D.C. 744. It does render the issue illegitimate, when for cause (1) of bigamy, either party having had another wife or husband living at the marriage : N.J. Divorce, 2 ; 111. ; Col. (2) Of impotency : N.J. Divorce, 4. (3) Of pregnancy of the wife at the time of marriage : Ga. But the children may be rendered illegitimate if so expressed in the decree of divorce : N.H., Neb. Children begotten before the commencement of the suit are, in all cases, pi'esumed legitimate : Mich., Neb. But the children are illegitimate when divorce is decreed (1) for cause of prior marriage : 111. ; Col. ; Miss. 1156 ; Fla. ; D.C. 741 ; see, however, % 6116, (2) For cause of pregnancy of the wife at the marriage : Ky. 7,1 ; Ga. ; Ala. 2699; Miss. Notes. — " But their legitimacy is left to be determined as at common law. * As to children born or begotten before the act of adultery complained of, in case of adultery by the wife. <^ So, as to children born since the act of adultery, their legitimacy is to be determined by the court. ^ And in such case (§ 6243, 2, a) children begotten before the commencement of the action are presumed legiti- mate until the contrary is shown. ^ When committed by the husband, as to children begotten before the action was commenced. § 6244. Custody of Children. Upon a decree of divorce (or, in Massachusetts, Maine, Vermont, Pthode Island, Connecticut, New Jersey, North Carolina, Texas, upon petition at any time thereafter ; see also below) the court may make such de- cree as it deem expedient for the care and custody of minor children, and determine with which parent any child or children shall remain : N.H.f 182,11 ; Mass." 146, 29-30 ; Me.f 60,17 ; Vt.f 2388 ; Pt.I.*+ 167,23 ; Ct.+ 14,3,8 ; N.Y.* Civ. C. 1771 N.J.f Divorce, 23 ; 0. 5696 ; Ind. 1046 ; III 40,18 ; Mich.* f 6238 ; Wis.* f 2362 lo. 2229 ; Minn.* f 62,18 ; Kan.* 80,645 and 643 ; Neb.*t 1,25,15 ; Md.* 51,13 Del 75,11 ; Va.* f 105,12 ; Va. +* 1879, Ex. 84,2-3 ; W.Va.*t 69,11 ; N.C.* 1296 Ky. 52,3,7 ; Mo. 2179 ; Ark. 2565 ; Tex. 2871 ; Cal. 5138 ; Ore. Civ. C. 497 ; Nev, 217 ; CoL 1098 ; Wash. 2007 ; Dak. Civ. C. 72 ; Mon. G. L. 512 ; Wy.f ih. 14 Uta. 1155 ; Ala. 2701 ; Miss. 1159 ; Fla.f 93,9 ; Ariz.f 1915 ; D.C. 747. And in making such decree, the rights of the parents, in many states, are, in the absence of misconduct, to be held equal, and the happiness and welfare of the children are to determine their custody or possession : Mass. 146,32 ; Ct.| 1883,28; 1885,99; N.J. Divorce, 27; Wis. ; Minn. ; N.C. 1570 ; Ky. ; Nev. ; Wy. ; Ala.« 698 DIVORCE. But in a few states, in all divorces, absolute or limited, the person not in fault is, generally, entitled to the custody of the minor children of the marriage : Ore. ; Ga. 1733 ; La. 157. The court may, however, at its discretion, for cause order otherwise, or remove the chil- dren from the custody of either party : Ga., La. It may commit the child to the custody of each parent alternately for fixed periods of time : N.C. Children over ten years of age may select which parent they will go with : Uta. Or the parties may agree as to the custody of children : Uta. In two states, when the State courts have jurisdiction over the custody of infant children of divorced persons, and such children are natives of the State, or have resided five years within its limits, they shall not, if of suitahle age to signify their consent, he removed out of the juris- diction of the State except with such consent ; or, if under that age, with the consent of both parents, unless the court, after cause shown, shall otherwise order : Mass. 14G,3I ; N.J. Divorce, 25 ; see also in Part IV., Division I. In cases of abandonment of the husband by the wife, he shall have the custody of the chil- dren after they are seven years old, if a suitable person : Ala. 2701. The decree mentioned in this section and § 6245 may be revised or altered, or a new one made at any time, tipon petition of either parent : N.H. 182,15 ; Mass. ; Me. ; Vt. ; R.L ; Ct. ; N.Y. 3 N.J. ; 111. ; Mich. 6239 ; Wis. 2363 ; lo. ; Minn. 62,19 ; Kan. ; Neb. 1,25,16; Md.; Del.; Va.; W.Va. ; N.C. ; Ky. ; Mo.; Cal. ; Ore. Civ. C.498; Nev. ; Ida.; Wy. ; Uta.; Miss., Ariz. 1916. Notes. — " So, in cases of a foreign divorce, if the minor children are resident in the State. * So also, in cases where a divorce is refused. " If the children be under the age of seven, and unless the wife is guilty of adultery. § 6245. Support of Children. Upon a decree of divorce (or, in Massachusetts,'' Maine, Vermont, Ehode Island, New Jersey, Connecticut, North Carolina, upon petition at any time after decree ; see note *) the court may make such decree as it deem expedient for the maintenance of minor children: N.H.f 182,11 ; Mass." 146,29 ; Me.'' f 60,17 ; Vt.'' f 2388 ; 1882,68 ; K.L*+* 167,23 ; CV 14,3,9 ; 1885,99 ; N.Y. Civ. C. 1760; ^.S.'^ Divorce,!^ ; 0. 5696; lud. 1046; 111.40,18; Mich.«'*''* 6238 ; Wis.* f * 2362 ; Minn.* f ^ 62,11 ; Kan."- ' 80,643,645 ; Neb.* f * 1,25,15 ; Md.** 51,13; Del.* 75,11; Va.*t* 105,12; W.Va.*t* 69,11; N.C.** 1296; Ky.* 52,3,7; Mo.* 2179; Ore.* Civ. C. 497; Nev. 217; Wash. 2007 ; Ida.* ih. 7; Wy.f* ih. 14; Ga. 1742; Miss.* 1159 ; Fla.'' 93,9; Ariz.f 1915; D.C. 747. But such support is to be made by, or out of, the estate of the guilty party: N.H., Ore. And only if the husband is libellee, and out of his estate ; Ga. This aUowance may be made, although the wife for any cause be not entitled to alimony : Ga. In Wisconsin, when a divorce is adjudged for fault of the wife, and the care of any children is awarded to the husband, the court may award him such sums for their support as it deems reasonable under the circumstances out of the wife's estate : Wis. 2365. When an allowance is thus made to children, the husband will no longer be liable to third persons for necessaries furnished them : Ga. Notes. — « See § 6245, note". * The decree may be subsequently altered, as in § 6244 specified. '^ See § 6244 note ^ <^ Only when the divorce is for adultery, incest, or cruelty. § 6246. Pending the Suit the court may, in most of the states, make order concerning the care, custody, education, and maintenance of minor children, as in the last two sections, respectively : N.H. 182,9 ; Mass. 146,17 ; Me.f 60,6 and 17 ; Vt.f « 2376 ; E.I. + ; Ct. 14,3,7 ; N.Y.* Civ. C. 1769 ; N. J." Divorce, 22 ; Ind. 1042 ; 111.40,13; Mich.* t" 6237; Wis.*" 2361; Minn.* f 62,17 ; Kan. 80,644; Neb. 1,25,14 ; Va.* f 105,10 ; W.Va.* f 69,9 ; N.C. 1296 ; Ky. 52,3,7 ; Cal. ; Ore. Civ. C. 496; Nev. 217; Wash. 2006; Dak.; Ida; Wy. 1882,40,13; Ga.* 1733,1741; Ala. 2701 ; Ariz. 1914. ABSOLUTE DIVORCE. — (C) EFFECT. 699 And, generally, it may make order prohibiting the husband from imposing any restraint on the person of the wife : KH. ; Mass. 146,16 ; Me. 60,7 ; Vt.f * 2376 ; Ind. 1042; lU. 40,12; Mich. 6236 ; Wis. ; Minn.*t 62,16; Neb.* f 1,25,13; Va. ; * t W.Ya. ; * f N.C.* 1287 ; Ore. Civ. C. 496 ; Wash. ; Wy. 1882,40,11 ; Ariz. 1913. Compare § 6266. If there are children of the marriage, whose provisional keeping is claimed by both husband and wife, the suit being yet pending and undecided, it shall be granted to the husband, whether plaintiif or defendant, unless there should be strong reasons to deprive him of it, either in whole or ia part, the decision whereof is left to the discretion of the judge : La.* 146,151. If the wife who sues for a separation has left, or declared her intention to leave, the dwelling of her husband, the judge shall assign the house wherein she shall be obhged to dwell until the determination of the suit. The wife shall be subject to prove her said residence as often as she may be required to do so, and in case she fails so to do, the proceedings are suspended : La.* 147. The court may also compel the man to deliver to the woman any of her separate estate which is in his possession or control, or prevent him from interfering with it : Va. 1882,60. Notes. — "On application of either party. * On application of the wife. § 6247. Property ; General Provisions as to Both Parties. Upon an absolute divorce each party is restored to all property remaining at the commencement of the suit which the other obtained from or through such party during the marriage, in con- sideration and by reason thereof: Ky. 52,3,6 ; Civ. C. 425 ; Ark. 2568. The parties may agree as to the distribution of their property: Uta. 1155. Upon any absolute divorce the parties lose all rights to administration, dower, curtesy, or intestate share in each other's property, real or personal ; and also all right in property settled upon him or her in consideration of the marriage only : X.C. 1843. Compare § 3247. When divorce is refused, the court may nevertheless make such order as may be proper for the disposition of the property of the parties : Kan. 80,643. § 6248. The "Wife's Real Property, upon an absolute divorce, becomes, (A) in a few states, hers absolutely ; and she is entitled to immediate possession of it as if the husband were dead: 0. 5700; Kan. 80,646. So, in many, upon a divorce (1) for any cause except adultery by the wife : Mass. 146, 24 ; Vt.t 2380 ; Mich.f 6240 ; Wis.t 2364,2372 ; Minn.f 62,20 ; Neb.*t 1,25,17 ; Ariz.t 1917. So, (2) when the husband is sentenced to imprisonment for life : Mich.,t Minn.,t Neb.,t Ariz.f So, in others, (3) only when the divorce is for fault of the hus- band : Me. 60,9 ; E.L 167,8 ; N.Y. Civ. C. 1760 ; 0. 5699 ; Ind. 1043 ; Del. 75,9 ; Tenn. 3328 ; Mo. 2183, So, in others, (4) specially when the divorce is for (1) rela- tionship: E.L 167,4; (2) insanity: R.L ; (3) impotency : R.I. ; (4) crime : R.L ; (5) adultery of the husband : R.I." 167,8. Upon a divorce for adultery by the wife her title to her separate, real, and personal estate during her life shall not be affected. And after her death, if she contracted a law- ful marriage after the divorce, the interest of the husband in her separate estate ceases. But the court may decree to the husband so much of her separate, real, and personal estate as it may deem necessary for the support of the minor children decreed to the husband's custody : Mass. 146,27. And upon divorce for such cause she forfeits her dower, in many states ; see § 3246. And also, in Delaware, any charge, estate, or benefit .settled upon her or in trust for her use in Heu of dower : Del. 75,8. (B) But, in other states, upon any decree of divorce the whole matter is left to the court (or jury, in Georgia), which may restore to the wife all or any part of her estate, real or personal, as seems equitable : N.H. 182,12 ; 111. 40,17 ; To. 2229 ; Md.* 51, 13 ; Va.*t 105,12; W.Va.*t 69,11 ; Nev. 218 ; Wash. 2007 ; Wy. ih. 15 ; Uta. 1155 ; Ga. 1722. 700 DIVORCE. (C) And in Rhode Island, she is entitled to all her real and personal property '' secured to her by law," and all her other real estate if there be no issue living, when the divorce is for adultery or other fault of the husband : R.T. 167,8, And if there be issue living, the whole matter is left to the discretion of the court: R.I. 167,10. (D) If the wife is in fault the court may restore to her all or a part of her real property : Del. And in case of divorce for fault of the wife, and she had received from the husband any property in consideration of marriage or love and affection, such real estate, or what is left of such personal estate, may be decreed to the husband : Ct. 14,3,6. (E) No judgment annulling a marriage or for divorce does, in any way, affect the right of a wife to the possession and control of her separate propei'ty, real and personal, except as pro- vided specially herein ; and nothing shall authorize the court to divest any party of his title in any real estate further than is expressly provided : Wis.f 2372. (F) Upon divorce for the wife's adultery, the husband's rights in her proj^erty, real and per- sonal, remain as before : N.Y. Civ. C. 1760. So, upon divorce for adultery of the wife, the husband holds her real estate for her life in any case, and has curtesy, if entitled thereto : Me. 00,10 ; Vt. 2384 ; R.I. 167,5 ; Neb. 1,25,24; Ariz. 1924. (G) All property and rights of either party, both concerning property or the children, not disposed of by decree of court, are by divorce divested from the guilty party and vested in the innocent one (compare $ 6240) : Nev. 218. (H) The title to real property may not be divested by the decree : Tex. 2864. (I) Upon divorce for fault of the wife the husband has his right to her real estate and is entitled to all her personal estate, in possession or action. And the rents and profits thereof as before : Tenn. 3329. (J) A divorce deprives the husband of all control over the separate estate of the wife : Ala. 2700. Note. — ° On the part of the husband only. § 6249. The Wife's Personal Property may, in many states, be restored to her in the cases specified in § 6248 for the several states respectively, or any part of it, by decree at the discretion of the court: Mass. 146,24; Me. 60,9; R.I. 167,4; 111. ;^ Mich.t 6241 : Minn.f 62,21 ; Neb.*t 1,25,18 ; Md. ; Tex. 2864; Nev. 218 ; Wy.f" 1882,40,19; Uta. ; Ariz.f 1918. So, only when she is not the party in fault : Ore. Civ. C. 497. Or the value thereof may be awarded: Mass., Me., Mich., Minn.,f Neb., Md., Wy.,f " Ariz.f And also, in a few, the value of any real estate of the wife disposed of by the hus- band and wife during coverture : Minn.,t Md. In others, her personal property remaining undisposed of, reverts to her like the real property (§ 6248) : Wis. 2372; Tenn.; Mo. 2183. She has her separate personal property: R.I. 167,8. So, when the divorce is granted upon her libel : N.Y. Civ. C. 1760. See also H 6248, B,D, 6247. Upon divorce for adultery by the wife, the husband holds her personal estate abso- lutely, except that the court may decree her a necessary subsistence from her own estate : Me. 60,10 ; Yt. 2384 ; R.I. 167,5-0 ; Mich. 6241 ; Neb. 1,25,24-5 ; Ariz. 1924-5. So in any case of divorce for fault of the wife : R.I. In several states, the court may require the husband to disclose on oath what per- sonal estate has come to him by reason of the marriage, how it has been disposed of, and what portion remains in his hands: Mass. 146,26 ; Me. ; Vt. 2381 ; Mich. 6244 ; Minn.; Neb. 1,25,21 ; Wy. 1882,40,17; Ariz. 1921. So, in others, the wife may at any time during suit require an inventory and appraisement of the real and personal estate in possession of the husband : Tex. 2868 ; La. 149. Note. — " Except if the divorce be for the wife's adultery. § 6250. Payment to Trustee. In most states, the court may order such personal property, or alimony, or the money paid in lieu thereof, paid to a trustee for the benefit ABSOLUTE DIVORCE. — (C) EFFECT. 701 of the wife and minor children : KH. 182,13; Mass. 146,25 ; Yt. 2383; Mich. 6242 ; Wis. 2368; Minn. 62,22; Neb. 1,25,19; Ore. Civ. C. 497; Wy. ih. 20; Ariz. 1919. § 6251. The Husband's Real Property is, as a general rule, not affected by a divorce, except under a decree for alimony (Art. 626). (A) But the wife, in a few states, has dower or intestate share as if the husband were dead (1) in any case, except where the divorce is for her fault; Me. 60,9. So, in several, she has in such case dower if she survive the husband : N.Y. Civ. C. 1760 ; 0. 5699 ; Kan. 80,646 ; and see also §§ 3246-3248. Except when the divorce is for the husband's impotence : Me. See § 6248. (2) She has dower as if he were dead in case of divorce for adultery by the husband : Mass. 174,13; E.I. 167,7; Mich. 6246; Minn. 62,24; Neb. 1,25,23; Nev. 220; Ariz. 1923. (3) Or of crime by the husband (§ 6208) : Mass, ; R.I. ; Mich. ; Wis. 2373 ; Minn. ; Neb. ; Nev. ; Ariz. ; (4) or his habitual drunkenness : Mich., Neb., Ariz. ; (5) or his misconduct : Mich. , Neb., Ariz. (B) If the wife is in fault, she is barred of dower : N.Y. ; 0. 5700 ; Kan. See also § 3246. And the husband has the same rights in his real estate as if she were dead : Ind. 1044. Alimony (§ 6201) may, however, be decreed in lieu of dower : R.I. So, in Georgia, if per- manent alimony is decreed, the wife has no interest in the husband's estate, upon his death, but the alimony is continued out of his estate : Ga. 1752. (C) In other states, the whole matter (except as above) is left to the court, as in § 6247 : Vt. 2381 ; III ; Va.* f 105,12 ; W.Va.*t 69,11 ; Nev. 218; Wy. ; Uta. See § 6262. So, the court may award her to retain her right of dower : D.C. 745. A divorce for the adultery of the wife bars her dower, and all distributive share in the estate of the husband (see also ^ 3246) : Ala. 2698. (D) The wife has no dower in any case of divorce, except when a marriage is dissolved by the husband's sentence to imprisonment, as in $ 6112 : Wis. 2373. For the effect upon the property of each other so as to change title, see also Art. 626, Alimonif. The Husband's Personalty is not generally affected. (A) But in Nevada, the wife has the same share in it as if he were dead (1) when the divorce is for cause of his adultery : Nev. 220 ; (2) or crime : Nev. (B) And except as above, the whole matter is left to the court, as in § 6207 : Vt., 111., Wis.,* Nev., Wy., Uta. See also Art. 626. On absolute divorce for fivult of the wife she loses all right to a distributive share or pro- vision from the husband's personalty on his death : N.Y. Civ, C, 1760 ; N.C (see § 6247). See also ^ 3246-7. § 6252. The Community Property is, as a rule, (A) equally divided between the two parties: Nev. 162; Ida. 1874-5, p. 636,12; Ariz. 1978, Except when the decree is for adultery or cruelty, the guilty party is only entitled to such portion as the court expressly allow : Nov., Ida., Ariz. (B) If the decree be rendered for adultery or cruelty, it is assigned to the parties in such propoitions as the court, from all the fl\cts of the case and the condition of the parties, may deem just ; if the divorce be upon any other ground, it is equally divided between the parties : CaL 5146, § 6253. The Homestead. The court in rendering decree may assign the homestead of the innocent party, either absolutely or for a limited period, according to the facts of the case, and in consonance with the law of homesteads (Part IV.) : Dak. Civ. C. 74. If a homestead has been selected from the community propeity, it may be assigned to the innocent party either absolutely or for a limited period, or it may be divided, or sold and the pro- 702 DIVORCE. ceeds divided ; if it has been selected from the separate property of either, it shall be assigtied to the former owner of such property, subject to the power of the court to assign it for a limited period to the innocent party : Cal. 5146. If the wife obtain the divorce, for fault of the husband the homestead is decreed to her and the minor children as if he were dead : Va. 183,7. See Exemptions, Part IV. § 6254. Subsequent Liabilities. After the divorce (after a decree for permanent ali- mony) (A) the husband loses all right to interfere or control with the wife's acquisitions by purciiase, descent, or otherwise : Ga. 1750 ; (B) he is not liable for her debts or contracts : Ga. Art. 626. Absolute Divorce. (D) Alimony. § 6260. Definition. It is an allowance out of the husband's estate made for the support of the wife when living separate from him : Ga. 1736. So, it may be either a specific part of the husband's estate or a sum of money : N.H. 182,12 ; and see $ 6262. It may be either from the corpus of the estate or otherwise : Ga. 1720. It is either temporary or pennanent : Ga. Subsequent Cohabitation of the husband and wife annuls all provisions made for per- manent alimony, either by deed or decree, in cases of absolute divorce, limited divorce (Art. 628), or separation (Art. 635), except that the rights of children under such deed or decree are not affected : Ga. 1751. § 6261. Alimony : when Decreed, (a) In most states, generally, in any case of absolute divorce, the court (or, in Georgia * the jury) has power to decree ali- mony to the wife : N.H.f 182,12 ; Mass. 146,36 ; Vt.f 2381 ; Ct. 14,3,5 ; N.J. Divorce, 19; 0. 5700,5699 ; Ind. 1045 ; 111. 40,18 ; Mich.*« * 6245 ; Wis.*« 2364; lo. 2229 ; Minn."-* 62,23 ; Neb.*« 1,25,22 ; Md. 51,13 and 18 ; Del. 75,9 ; Va.* t 105,12 ; W.Va.*t 69,11 ; Ky. 52,3,6 ; Tenn.* 3325 ; Mo. 2179 ; Ark. 6245 ; Nev. 220 ; Col. 1098 ; Wash. 2007; Ida. ib.7; Mon. G. L. 512 ; Wy. ib. 15 ; Uta. 1155 ; Ga.* 1720 ; Ala.^ 2695 ; Miss. 1159 ; Fla.* 93,9 ; KM.f 997 ; Ariz.«'n922 ; D.C. 745. (B) But, in many, so only when the divorce is for adultery or other fault of the hus- band : Me. 60,9 ; R.I. 167,9;" N.Y. Civ. C. 1760 ; Kan. 80,646 ; Cal. 5139; Ore. Civ. C. 497 ; Dak. Civ. C. 73 ; La. M60 ; D. 1196. In Oregon, whenever a marriage is annulled or divorce decreed, the libellant is in all cases entitled, in his or her individual right, to an undivided third part in fee of the other's real estate, in addition to the allowance of alimony: Ore.f Civ. C. 495. It will be granted to the wife, though the husband applied for the divorce on the ground of " cruel and barbarous treatment " by her : Pa. Divorce, 7. It will be granted to a woman who in good faith intermarried with a man having another wife living at the time, as in other cases of divorce, but such allowance must not be made as will be inconsistent with the rights of such other wife : 111. 40,19. The courts of equity may hear and determine all causes for alimony in as full a manner as the ecclesiastical courts in England: Mass. 146,33; Md. 51,17. Or ''as courts of equity:" Mass. So, as to all matters " within the purview of the chapter on divorce : " Mass. Alimony as above may be decreed upon petition of the wife at any time after the divorce : Mass. ; and so in other states. And in many, any decree for alimony or allowance may be revised at any time by the court : Mass. 146,39 ; Me. 60,14 ; Vt. 2386 ; 111. ; Mich. 6248 ; Wis. 2369 ; To. ; Minn. 62,25 ; Neb. 1,25,27 ; Mo. 2185 ; Ark. 2567 ; Cal. ; Col. ; Dak. ; Ida. ; Men.; Wy. ib. 21 ; Ga.* 1739 ; Miss. ; Ariz. 1927. But when a final division of the corpus of property is made by way of alimony, no subse- quent provisions for the wife can be made : Wis. Notes. — " But not when the divorce is for cause of the wife's adultery. ^ Only when the estate and effects awarded to the wife are insufficient to support her and the children decreed to her custody, having due regard to their circumstances. <^ See § 6245, note '^. '^ Only when the wife has not suffi- cient separate estate for her maintenance. ABSOLUTE DIVORCE. — (D) ALIMONY. 703 § 62S2 Alimony : Amount. (A) It may not, in several states, exceed (1) the use for life of one half the real estate and the absolute property in one half the personal estate of the husband : R.I. 167,9 ; (2) one third the husband's estate, real and per- sonal : Ct. 14,3,5 ; Minn. ; (3) one third of his income : La. IGO. (b) In other states, the whole matter of amount is left to the discretion of the court (or jury) : Me. ; Vt. ; KY. Civ. C. 1760 ; N.J. ; 0. ; Ind. ; 111. ; Mich. 6245 ; Wis. 2364 ; lo. ; Kan. ; Neb. ; Del. 75,9 ; Va. ; W.Va.; Ky. ; Tenn. 3326 ; Mo. 2170 ; Ark. ; Cal. ; Ore. Civ. C. 497 ; Nev. 220 ; Col. 1098 ; Wash. ; Dak. ; Ida. ; Mon. ; Wy. ; Uta. ; Ga. ;* Ala.; Miss.; Fla. ; Ariz. Alimony may be decreed in gross or from year to year : Me. ; 0. ; Mich. ; Kan. ; Del. 75,10; Mo. 2180; Ore. It may consist of either real or personal property : Kan. In other states, it must always be a sum in gross ; but (in Indiana) time may be allowed for its payment upon instalments, security being given : Ind. 1047 ; Minn. (c) And the amount, subject to the above limits, shall be such as the court deem reasonable, having regard to the amount of personalty which came to the husband by the marriage, and his ability : K.I., N.Y., 0., Mich., Wis., Minn., Kan., Neb., Tenn., Ga.,* Ala., Miss. In several, alimony is only decreed when the wife has not sufficient means for her maintenance, and at the discretion of the court : Neb; La. 1196. See also below, and § 6261, note ^ If the divorce be for fiiult of the husband, the allowance is more liberal : Ala. 2696 ; if for fault of the wife, it is abated accordingly : Ala. 2697. Alimony may include the amount necessary to support minor children committed to the wife's care : N.Y. ; 111. ; Mich. ; Wis. ; Minn. ; Neb. ; Tenn. ; Mo. ; Cal. ; Ore. ; Nev. ; Wash. ; Dak. ; Uta. ; Ga.* 1742. And, in such case, the husband is not liable for necessaries furnished them: Ga.* In as- signing alimony or allowances in any case of divorce or separation, the court must resort first to the community property, and then to the husband's separate property : Cal. 5141. When the wife has a separate estate (or, in California, when there is sufficient community property to give her proper support) the court has discretion to withhold any allowance to her from the separate property of the husband: Cal. 5142; Dak. Civ. C. 74. In case of divorce for fault of the husband, the court may assign to her out of the husband's estate, real and personal, such share as it deems reasonable : Del. 75,9. So, in Wisconsin, in any case where alimony is allowed : Wis. If for fault of the wife, the court may assign to her such part of the husband's personal prop- erty as it deems reasonable : Del. The community property and the separate property may be subjected to the support and education of the children in such proportions as the court deems just : Cal. 5143 ; Dak. The husband may be required to disclose under oath the situation of his property : N.H. 182,12 ; Yt. 2381 ; and compare $ 6249. So, at the time of filing the libel, the libellant must render a schedule on oath of property owned by the parties at the time, dis- tinguishing the separate estate of the wife, if any : Ga.* 1720. The court may provide at what times and in what sums alimony or other allowances for support shall be paid : Wis. 2367; Kan. Alimony may at any time be revoked by the court : La. ; and will be revoked if the wife contract a second maiTiage : La. § 6263. Security. The court may, in many states, if alimony or an allowance in the nature of alimony is decreed for the wife or children, require sufficient security for its payment: N.H. 182,14; Mass. 146,38; Vt. 2385; N.Y.* Civ. C. 1772 ; N.J. Divorce, 19 ; 111. 40,18 ; Mich.* 6247 ; Wis. 2307 ; Minn. 62,23 and 26 ; Neb. 1,25,26 ; Mo. 2179,2180 ; Cal. 5140 ; Col. 1098 ; Dak. Civ. C. 74; Mon. G. L. 512 ; Miss. 1159 ; Fla. 93,9 ; Ariz. 1926. Or it may impose it as a charge upon any specific real estate of the party liable : Me. 60,9; Wis.; Minn. And, in Georgia, the property set apart to secure alimony, etc., is not liable for the hus- band's debts while the wife lives : Ga.* 1750. 704 DIVORCE. § 6264. Alimony to the Husband. In a few states, upon all cases of absolute di- vorce, the court may decree a part of the wife's estate to the husbaud in the nature of alimony: Mass. 146,36; Va.* f 105,12. In a few states, no distinction is apparently made between the laws governing ali- mony to the wife and alimony to the husband : lo. 6229 3 Ore. Civ. C. 497 ; Wash. 2007. § 6265. Alimony During Suit. The court has, in most states, power to order an allowance to the wife petitioning for divorce (or, in Massachusetts, Maine, Ehode Island, New York, Ohio, Indiana, Illinois, Michigan, Wisconsin, Iowa, Min- nesota, Kansas, Nebraska, Delaware, Kentucky, Missouri, Arkansas, Texas, Cali- fornia, Oregon, Nevada, Washington Territory, Dakota, Idaho, Wyoming, Georgia, Alabama, Louisiana, Arizona, and District of Columbia, defending such suit), either absolute or limited, at any time after the bill to continue until final decree : Mass 146,15; Me. 60,6 ; Vt. + 2377 ; E.I. 167,23 ; N.Y. Civ. C. 1769 ; 0. 5701 ; Ind 1042 ; 111. 40,15 ; Mich. + 6235 ; Wis." 2361 ; Io.« 2226 ; Minn. 62,15 ; Kan. 80 644; Neb. 1,25,12; Del. 75,5, Vol. 14, Ch. 548; Va.f 105,10; W.Va.t69,9 N.C. 1291 ; Ky. 52,3,6 ; Civ. C. 424 ; Mo. 2179 ; Ark. 2563,2567; Tex. 2870 Cal. 5137; Ore. Civ. C. 496; Nev. 220; Col. 1098 ; Wash. 2006 ; Dak. Civ. C 71 ; Ida. ih. 7; Mon. G. L. 512; Wy. 1882,40,12; Ga.« 1737; Ala. 2694; La, 148 ; Ariz. 1912 ; D. C. 746. But not, in some states, when she has sufficient property of her own available : R.I., N.C; Ga. 1738; La. The husband cannot be compelled to pay such allowance unless the wife proves that she has constantly resided in the house appointed by the judge : La. Upon an application for such temporary alimony, the merits of the cause are not in issue, except as bearing on the amount of alimony : Ga. 1740. The amount may be made sufficient to cover the support of the family pending suit : lo. ; Cal ; Nev. ; Dak. ; Wy. ; Ga. 1741. And if such support is allowed, the husband will not be liable for necessaries furnished them : Ga. The court is to consider the age, sex, condition of the parties, and other matters deemed pertinent : To. 2228. Note. — " So, in these, to the husband out of the wife's estate. § 6266. Attachment to Secure Alimony. In most states, the court has juris- diction also (1) to enjoin the libellee from conveying such portion of his property as seems necessary to secure alimony (or, in Texas, from disposing of any part of the estate) : Vt. 2378 ; 0. 5701 ; Kan. 80,644; Ky. 52,3,9 ; Tex. 2868 ; Nev. 220 ; La. 149 ; or (2) to preserve his estate, or compel him to give security to abide the decree: Va.*t 105,10; W.Va.*t 69,9; (3) to enforce the payment of costs or alimony by execution, attachment, sequestration, etc. : Mass." 146,11 ; N.Y.* Civ. C. 1772 ; N.J. Divorce, 19 ; Mich.* 6235,6247 ; Wis. 2367 ; lo.* 2227 ; Minn.* 62,15 and 26 ; 1881,28 ; Neb.* 1,25,12 ; 1883,41 ; Del. 75,13 ; N.C* 1294; Ky. ; Tenn. 3327 ; Mo. 2179 ; Ark. 2566; Nev. 218; Wy. ih. 16. So, in several, pending suit the court may make such order in relation to the per- sons and property of the parties as in its discretion shall be deemed necessary or proper: Me. 60,17; R.L 167,25; Wis. 2361; Del. 75,5; Tex. 2809; and compare § 6246. On and after the day of service, it shall not be lawful for the husband to contract any debts on behalf of the community, nor to dispose of the lands belonging to the same : Tex. 2867. And any alienation made by him thereafter is null and void, if proved to have been made with a fraudulent intent of injuring the rights of the wife : Tex. Notes. — "In suits by the wife only. * See § 6265, note <». LIMITED DIVORCE. — (A) CAUSES AND PROCESS. 705 § 6267. Praudulent Transfer. After a separation rio transfer of any of his property by the husband, except bona fide in payment of pre-existing debts, shall pass the title so as to avoid the vesting thereof according to the final verdict of the jury in the divorce case : Ga* 1721. From the day on which the action of separation shall be brought, it shall not be lawful for the husband to contract any debt on account of the community, nor to dispose of the im- movables belonging to the same ; and any alienation by him made after that time shall be null, if it be proved that such alienation was made with the fraudulent view of injuring the rights of the wife : La. 150. Art. 628. Limited Divorce. (A) Causes and Process. § 6280. Definitions. Besides the absolute divorce hitherto mentioned, there are in many states forms of limited divorce, called divorce from bed and board: R.I. ; N.Y. ; N.J. ; Pa. ; Mich. ; Wis. ; Minn. ; Neb. ; Md. ; Del. ; Va. ; W.Va. ; N.C. ; Ky. ; Tenn. ; Ga. ; Ala. ; La. ; Ariz. 1942 ; D.C. But, in other states, there is no limited divorce ; and see specially : Fla. 9 3,. 3. In some, " alimony without divorce " is in effect a limited divorce, and is so treated in this chapter : 0., Ind., Kan., Fla. See also Art. 635. This divorce is granted in all cases only on petition of the wife : Minn. 62,30. § 6281. Causes. Such divorce will or may be decreed, on the application of the injured or innocent party, for the following causes: (1) in many states, for desertion : N.F. Civ. C. 1762 ; Pa." Divorce, 25 ; O. 5702 ; Ind. 5132 ; Mich. 6229 ; Wis. 2357 ; Minn. 62,31 ; Neb. 1,25,7 ; Md. 51,13 ; Va. 105,7 ; W.Va. 69, 6 ; N.C. 1286 ; Tenn.« 3307 ; Fla. 93,11 ; La. 138 ; Ariz. 1953. In detail, " on application of the party injured, if either partj' abandon the family : " N.C ; "for abandonment or desertion : " Md.. Va., W.Va., La., as in § 6204 : Wis; " for utter de- sertion continued for two years:" Mich., Neb. ; "for abandonment of the wife and refusal or neglect by the husband to provide for her : " Minn. ; so, if continued one year : Fla. ; " wilful desertion for one year:" Wis., Ariz. ; "when the husband abandons his family or turns his wife out of doors : " Pa.,» N.C, Tenn.« (2) In many, for cruelty : N.Y. ; N.J. Divorce, 25 ; Pa. ; "^ 0. ; Mich. ; Wis. ; Minn. ; Neb. ; Md. ; Va. ; W.Va. ; N.C. ; Tenn. ;" Ala. 2702 ; Fla. ; La. ; D.C. 739. In detail : " For extreme cruelty of either party : " N.J., Mich., Wis., Neb., Ala., Ariz. ; " whether by personal violence or otherv/ise : " Neb., Mich., Wis. ; " such cruel and barbar- ous treatment as to endanger life:" N.C, Pa.,« D.C; "such indignities to the person as render his or her condition intolerable and life burdensome : " Pa.," N.C, Tenn.," La. ; " rea- sonable apprehension of bodily hurt : " Va., W.Va., D.C. ; as in § 6205 : Wis. ; " cruel and inhuman treatment: " N.Y., Minn., 0., Fla., La. (3) In several, for failure to support : Mich. ; Neb. ; Del. 75,1 ; N.C. ; Tenn." In detail : " When the husband is of sufficient ability and cruelly neglects suitably to pro- vide for the wife's support: " N.Y. ; Mich. ; Wis. ; Neb. ; Del. ; Ariz. ; " when either party turn the other out of doors, on application of the latter : " N.C, Tenn. ; " " when his conduct is such as to render it unsafe or improper for her to live with him : " N.Y., Wis., Minn., Tenn. j <• in a few, such neglect must have continued three years : Del. ; one year : Ariz. (4) In several, for adultery : Pa." Divorce, 23 ; 0. ; Fla. ; La. ; Ariz. In detail : Adultery of either party : Ariz. ; if the husband live for three months in open adultery with another woman : Fla. (5) In several, for intoxication: 0., Wis., W.Va., N.C, La. In detail : " When either party becomes an habitual drunkard : " N.C, La. : as in $ 6206: Ind. ; Wis. ; W. Va. 1882,60 ; Ariz. (6) " For extreme vicious conduct : " Md. (7) For impotency existing at the time of marriage : Ariz. 45 706 DIVORCE. (8) When the female was under fourteen at the time of marriage, which was without con- sent of the parents or guardians, and not voluntarily ratified by her since reaching that age : Ariz. (9) In many, a limited divorce or alimony may be granted for any cause of absolute divorce: E.I. 167,11; Kan. 80,649; Ky. 52,3,6; Ala.; fla. 1885, 3581. (10) When the consent of either party was obtained by fraud or force : Ariz, (11) For convictiou of either party for felony after the marriage: 0., Ind., La., Ariz. (12) For the same general reasons (omnibus clause) as are specified in § 6213 for the same state : Ariz. (13) For a public defamation of one party by the other : La. (14) For an attempt of one against the life of the other : La. (15) When either party, charged with an infamous crime, has fled from justice, on the other party's producing proofs of his guilt : La. (16) For any "gross neglect of duty : " 0. (17) When either party was under the age of consent at the time, as in § 6201,13 : Del. (18) When the husband makes a false charge of prostitution against the wife : W.Va. (19) In Georgia, a divorce from bed and board may be granted for any cause held suificient by the English courts prior to May 4, 1784 : Ga. 1714. (20) A divorce from bed and board may always, in one state, be decreed when an absolute divorce is prayed for, if the causes prove sufficient : Md. So, (21) the jury may at discretion find a total or limited divorce in cases of cruelty or intoxication : Ga. 1713. " Such as reuders their living together insupportable : " La. And (22) " for such other causes as may seem to require " such divorce : R.I., Ky. Note. — « On application of the husband only. § 6282. Collusion, etc. Commonly the rules in H 6214-6217, apply to limited divorce. So, no limited divorce can be granted for adultery wheu it was committed by connivance of the parties: Ariz. 1953. Condonation. No limited divorce can be granted for adultery when the parties have voluntarily cohabited after knowledge of it : Ariz. 1958. § 6283. Jurisdiction to grant limited divorce is vested in the courts of the several states as follows: (1) when any husband and wife are both resident in the State: N.Y. Civ. C. 1763; Minn. 62,30 ; (2) when the marriage was solemnized in the State and the plaintifi" is resident therein at the time of petition : N.Y. ; Minn. ; (:3) when the marriage took place out of the State, but the parties have resided therein one year, and the plaintiff is resident therein at the time : N.Y. ; Minn. See, for other states, § 6220. § 6284. Residence. The libellant must have resided six months within the State imme- diately before the suit : Ariz. 1943. See ^ 6222 for other states. § 6285. Service and Proceedings. Tlie proceedings are generally to be commenced and conducted as in the case of absolute divorce : Minn. 62,34; Ala. 2703. See § 6224. Tliey are by bill in chancery : Fla. 93,12. § 6286. Evidence. Commonly, the rules of evidence as specified in $ 6225 apply : Ariz. § 6287. Court. The courts having jurisdiction of limited divorces are the same respec- tively as in $ 6220, enumerated : Minn. 62,.30 ; Kan. 80,649 ; Ariz. 6141. So, probably, in all. § 6288. Trial. The facts in a bill for alimony are to be found by a jury : Fla. 93,12. In Georgia, a divorce from bed and board requires the verdict of only one jury: Ga. 1711. For other states, see ^ 6227. LIMITED DIVORCE, — (B) EFFECT. 707 § 6289. Defences. The defendant may prove the wife's ill-conduct in justification as a defence : N.Y. Civ. C. 1765 ; Minn. 62,33. So, her open adultery : Fla. 93,12. Sec for other states H 6214-7, 6228. Art. 630. Limited Divorce. (B) Effect. § 6300. Remarriage. After a limited divorce, in several, neither party can marry again during the life of the other: Va. 105,13; W.Va. 69,12; Ky. 52,3,8; Ga. 1732. § 6301. Duration. A limited divorce may be either forever or for a limited time : N.Y. Civ. C. 1762 ; N.J. Divorce, 5 ; Mich. 6229 ; Wis. 2357 ; Minn. 62,30 ; Md. 51,13 ; Va. 105,15 ; Tenn. 3223. So, in others, the court may decree that the parties be perpetually separated in their persons and property : Va. 105,13; W.Va. 69,12. § 6302. Status of Parties. In a few states, persons divorced from bed and board are perpetually separated and protected in their persons and properties : Va., W.Va., Ky. So, in two others, the widow is like a feme sole, as to her person, property and earn- ings : Mich. 6287; Ga. 1732; Fla. 93,13. The husband is no longer liable for the wife's support : Ga." l^OTE. — "If sufficient provision for her was made by the court decreeing the divorce. § 6303. Effect of the Decree. Except as in § 6301, the effect is like that of a decree of absolute divorce : Va. 105,13; W.Va. 69,12. The court granting the decree may, generally, revoke it at any time thereafter. See § 6305. § 6304. Absolute Divorce. The parties already divorced from bed and board may still have a bill for absolute divorce : Md. 51,15. When a divorce from bed and board has been decreed for desertion and five years (three years in West Virginia) have elapsed without reconciliation, the court may decree a divorce from the bond, if of opinion that it is otherwise proper, and that no recon- ciliation is probable : Va. 105,15 ; W.Va. 69,13. § 6305. Reconciliation. (See also § 6229.) Persons divorced from bed and .board may be reconciled and live together as husband and wife: R.I. 167,11; Pa. Divorce, 25 ; Ga. 1734. But they must first file in court a written agreement to that efiect: Ga. So, in others, a judgment for limited divorce may be revoked by the court at any time, upon joint application of the parties and satisfactory evidence of reconciliation : N.Y. Civ. C. 1767; Mich. 6263 ; Wis. 2370; Minn. 62,37 ; Neb. 1,25,41 ; Md. 51,13; Va. 105,15; W.Va. 69,13; Ky. Civ. C. 427. § 6306. Real Property. (See also §§ 6247-6252, note.*) The effect on the prop- erty, both real and personal, of the husband and wife is, in several, the same as m absolute divorces respectively : O.5703; Mich. 6240 ; Minn, 62,20 ; Neb. 1,25,17; Va. 105,13; Ky. 52,3,8. The court may by decree give the wife absolute control of her separate property : Mmn. "'separation from bed and board carries with it separation of .goods and effects : La. 155. All the wife's real estate is restored to her : Mich. 6287. See § 6302. One-half the real or personal property derived by the husband through the wife is restored to her : Pa. Divorce, 28. 708 DIVORCE. § 6307. Personal Property. (See also §§ 6249, 6251, states noted.*) Such part of her personal estate which came by her marriage to the husband is restored to her as the court deem reasonable :" Minn. 62,21 ; Neb. 1,25,18. The persoualty that the husband received by the marriage is restored to the wife : Minn. But only one half of it is so restored : Pa. Divorce, 28. Note. — <• Except as in § 6249. § 6308. Special Cases. In case of separation from bed and board, the party against whom it shall have been pronounced, shall lose all the advantages or donations the other party may have conferred by the marriage contract or since, and the party at whose instance the separation has been obtained shall preserve all those to which such party would have been entitled; even though such donations, etc., were reciprocally made : La. 156. § 6309. Property of Husband. Generally the effect upon property is the same as in absolute divorce, except that it does not bar dower, curtesy, or distributive rights : Ky. 52,.3,8. § 6310. Decree Refused. By the laws of several states, in a judgment in an action for a divorce from bed and board, although such divorce be denied, the court may make such order for the custody, support, and maintenance of the wife and children by the husband or out of his property as the nature of the case may render suitable : Mich. 6262; Wis. 2366; Minn. 62,36; Neb. 1,25,40; W.Va. 1882,60. So, in case of an action for absolute divorce, which is denied : Cal. 5136 ; Dak. Civ. C. 70. § 6311. Alimony to the Wife is in some states allowed in cases of limited divorce at the discretion of the court: N.Y. Civ. C. 1766; Pa. Divorce, 25; 0. 5703; Ind. 5104; Minn. 62,34-5; Ariz. 1947, 1950. So in one other, only if the wife be the party petitioning : N.C. 1290. See also Art. 626. As in cases of absolute divorce : Mich." 6245 ; Wis. 2364 ; Neb. 1,25,22 ; Ala. 2703. So, of course, in states where the suit is for alimony ; see $ 6280. In Rhode Island, the court may assign the petitioner a separate maintenance out of the estate of the husband or wife, as necessary and proper : R.I. 167,12. This alimony may be decreed without rendering a judgment of separation : N.Y. ; Mich. 6262 ; Wis. 2366. Note. — " Except that alimony may be allowed upon a limited divorce even for the cause of the wife's adultery. § 6312. Amount. It may not exceed one-third the husband's income : Pa. Divorce, 25; N.C. In others, the alimony is to be reasonable, according to the husband's [or wife's] ability : N.Y., Pa., Ind., N.C, Ariz. Alimony may be allowed pending the suit : Minn. 62,34. § 6313. Alimony to the Husband may be allowed if he be the party petitioning for divorce : N.C. 1290. § 6314. Children. The court may make order for the custody and support of chil- dren, as in §§ 6244-5: N.Y. Civ. C. 1760; 0. 5703; Wis. 2362,2365; Ala. 2703; La. 157 ; Ariz. 1956. See also in § 6244 states so noted.* § 6315. Subsequent Adultery. In case of the wife's adultery, committed after a limited divorce, the court may deprive her of alimony and her right of dower, and deprive her of the custody of the children : D.C. 749. SEPARATION. 709 Art. 635. Separation. § 6350. Separation in Fact : Children, etc. (1) In several states when the parents of minor children live separately, the proper court on petition of the wife or of either parent has power to make decrees or orders concerning their care, custody, education, and maintenance: KY. 2,8,2,1-2; Cal. 5199,5214; Dak. Civ. C. 106; Ga. 1794; Ala. 2746. (2) In others, the court has the same power to make such decrees, upon petition of either parent, as if they were divorced : Mass. 147,36 ; Vt. 2389 ; J^.J. Divorce, 26,28 ; Cal. ; Dak. ; Ga. (3) So, specially upon petition of either husband or wife when the other has joined the society of Shakers, and detains the child : N.Y. 2,8,2,4. But in Michigan, the wife is entitled to the custody of all such children under twelve, and the father to such as are over twelve ; but the court may order otherwise : Mich. 6294. So, in Nebraska, when, from any cause, a husband and wife shall separate, the wife may obtain an order of court for the custody of any child or children not exceeding twelve years of age, if she be not the offending party : Neb. 1,25,43-4. In several, a married woman whose husband deserts her, or from intemperance or other cause fails to provide for her, or is incapacitated to do so, may in her name make contracts for her labor and that of minor children, and is entitled to her and their wages, and may sue for or recover the same in her name : Vt. 2327; 0. 3111 ; 1884, p. 209 ; Wis. 2344 ; Mo. 3286. When a wife, for justifiable cause, is actually living apart from her husband, the probate court may, on petition of the wife (or, in Massachusetts, her guardian if she is insane), (I) pro- hibit the husband from imposing any restraint upon her liberty : Mass. 147,33; (2) and make such order as it deem expedient concerning the support of the wife, the care of the minor chil- dren, their custody and maintenance : Mass. ; Ct. 14,3,8. When a husband from profligacy or other cause neglects to provide for his children, the wife has all the rights and duties of a father, may place them at work, bind them out, receive their earnings, etc., without his interference; provided she educate and maintain them properly; if she is unsuitable, the court may appoint a guardian : Pa. Marriage, 28. When any husband and wife live separate without being divorced, or when they are divorced but no decree has been made for the custody of children, and they have a minor child, the Chancery or Supreme Court upon habeas corpus may make order for the access of the mother to her infant child at such time as it may direct ; and, if the child be under seven, may order it to be deUvered to the mother until it reach that age, unless she be an improper person : N.J. Infants, 21-22. When a husband abandons his wife, she is entitled to the custody of their minor children, unless a court of competent jurisdiction order otherwise: Ilk 68,16; lo. 2215. When the husband and wife live separate and apart, neither has any superior right to the custody, control, or education of the children : Cal. 5198 ; Dak. Civ. C. 106. In the case of the death of any parent to whom such custody of minor children has been awarded, the custody does not revert to the surviving parent without a decree of court, and a guardian may be appointed in lieu thereof: N.J. Divorce, 29. If a married man renounce the marriage covenant, or refuse to live with his wife in the con- jugal relation, by joining himself to a sect forbidding marriage, the wife may petition for a proper and just division of property, real and personal, of the defendant; and she will be awarded the custody of minor children ; and in such case, all gifts or grants or devises by the husband which tend to deprive his family of their support are void, and the property may be recovered back : 0. 3113-7; Ind. 5132, 5134. So if a father, wife, or widow take such action, the court may appoint a guardian for chil- dren, and make a provisicm for their maintenance out of such person's estate, and sales or gifts of the person will be invalid as above : Ky. 52,3,11-2. If a father has disappeared, leaving minor children bom during his marriage, the mother shall take care of them, and shaU exercise all the rights of her husband with respect to then education and the administration of their estate. 710 DIVORCE. But if the mother contracts a second marriage she cannot preserve the superintendence of her children but with the consent of a fomily meeting composed of rehitions or friends of the father. There shall be appointed for the children a provisional tutor in the manner herein directed, if at the time of the disappearance of tlie father the mother should be dead, or if she should die before their attaining the age of majority. The same thing shall take place if the husband or wife who has disappeared, has left minor children born of a former marriage : La. 81-5. § 6351. Separate Maintenance. In many states, if any husband (without jus- tifiable cause : N.J., 111., Mo.), separate himself from his wife or fail to provide her with necessary subsistence according to his means, she has a process to obtain an allowance out of his property for the support of herself and children, without a divorce : N.H. 183,3 ; Mass. 147,33 ; N.J. Divorce, 20 ; Ind. 5132,5139 ; 111. 68,22 ; Mich. 6291 ; 1885,149 ; Kan. 80,649 ; N.C. 1292 ; Mo. 3283 ; Cal. 5137, Amend- ment; Wy. 1882,40,18 ; Ga. 1744,1746,1747. So, in others, the guardian or next friend of any such deserted wife who is insane : N.C. ; see in Part IV., Div. I. And the court may prohibit the husband from imposing any restraint upon her lib- erty : Mass. So in Florida, such decree releases the wife from the husband's control : Fla. 93,13. The court may make order concerning the care and custody of the children : Mass. ; Ind. ; Mich. 6293 ; and compare § 6350. The wife is entitled to acquire and use separate property : Fla. Such allowance can only be during the joint lives of husband and wife: Mich. Such separate maintenance may also be granted (1) for any of the causes of divorce, the husband being guilty: N.H. 183,15; Kan.; (2) when the husband deserts the wife for one year: Cal; Fla." 93,11-12; (3) or lives in open adultery for three months : Fla. ; ° (4) or in cases of cruel, inhuman, and barbarous treat- ment : Fla." (5) when the husband has joined a religious society professing that marriage is unlawful: N.H., 0., Ind.; (6) or when he has been convicted of crime and actually imprisoned in a state prison ; N.H., Ind. : (7) when he is a drunkard or spendthrift : N.C. In Georgia, permanent alimony may be granted the wife (1) in cases of voluntary separa- tion : Ga. 1744 ; (2) where, against her wUl, she is abandoned or driven off by the husband : Ga. Such allowance or alimony (§§ 6350-1) may however be barred, if the husband by volun- tary deed make an adequate provision for the wife's support : Ga. 1745. If a married woman holds real estate in her right, and her husband by criminal conduct to- wards her or by ill usage gives her cause to live separate from him, such wife may petition the court and pray that such estate may be enjoyed by her for her sole use and benefit : Vt. 2331-2; Mo. 3292. So, when any man has abandoned his wife for three years continuously, with total neglect of duty, she may petition the court to empower her to convey such real estate as if sole : Ct. 1885,110,61. When any man abandons his wife, he is deemed to have abandoned his right to the custody and control of her property and the rents and income thereof; and such property immediately vests in her and is her separate estate ; and she may, while so abandoned, sue or be sued, and transact business as if sole : Ct. 14,2,6 ; Tenn. 3348. If a husband without sufficient cause deserts his wife, children, father or mother, so that they are received into the almshouse, the board of trustees may issue a writ of sequestration against the husband's property : Del. 48,15 ; see § 6608. If the husband is under interdiction or absent, the judge may, when satisfied of the fact, authorize the wife to sue or be sued, or to make contracts : La. 132. All proceeds of such sales or payments and other personal ostate so received may be used by her for the necessary support of herself and family : Mo. 3287. SEPARATION. 711 The woman separated from bed and board has no need in any case of the authorization of her husband, as this separation carries with it not only a separation of property, but a dissolu- tion of the community of acquets and gains : La. 123. Note. — « But not in case of open adultery by the wife. § 6352. Effect. After such separate maintenance (or after such alimony, etc., granted) the husband ceases to have any power to control the wife's acquisitions by purchase, descent, gift, or otherwise : Ga. 1750 ; and the property of the husband set apart for her support is not subject to his debts while she lives: Ga. And she shall hold in her owu right and for her use the earnings of her minor chil- dren during any separation in this Article mentioned: jST.H. 183,2 ; R.I. 166 23 • Cal 5169 ; Nev. 164; Dak. Civ. C. 83 ; Ga. 1756. ' ' And she may also sell or convey real or personal estate : R.I. So, in others, she may hold her own earnings or acquisitions to her separate use • N.H., Cal., Nev., Dak., Ga. Compare § 6422. Free from the debts of the husband : Mo., Ga. And at her death intestate, the same descend to her children or next of kin : Ga. The orders specified above and in $ 6353 may also be made and consequences follow, (1) when any cause exists which is, or may be if continued cause of divorce, and the wife is the injured party: N.H. 183,2: Minn. 69,5; (2) or has become insane: N.H. Money or other property acquired by a married woman living separate from and not sup- ported by her husband, which has been kept separate and can be distinguished from the hus- band's property, shall not be deemed his or taken for his debts so long as they live separately, and he fails to support her in whole or part : Del. V. 14, C. 80. But it may be taken for her debts contracted while so living apart : Del. She may sue and be sued in respect to such money or property : Del. § 6353. Powers of Wife Separated. (A) When a husband abandons his wife (and except in Minnesota, New Mexico, leaves the State, and is absent therefrom) one year without providing for the support of his family; or where he is imprisoned in the penitentiary (except in New Mexico) ; the wife may get an order of court authorizing her to manage, sell, or incumber the property of the other as shall be necessary in the judgment of the court for the support of the family and the purpose of paying debts of the other or debts contracted for the support of the family : 111, 68,11 ; lo. 2207 ; Minn. 69,5 ; Dak.« Civ. C. 85 ; N.M.« 1090. So, mutatis mutandis, the husband, when deserted by the wife : 111., lo., Minn., Dak., N.M." The same process may be had in any case where there would be cause for divorce : Minn., N.M. (B) When a husband (1) abandons his wife or (2) is separated from his wife, (in New Jersey), not making a sufficient provision for her maintenance (or, in Indiana, Michi- gan, Kentucky, when he is sentenced to confinement in the state prison) ; the wife, if of age, may get an order of court authorizing her (1) to sell and convey or lease her real estate, and to sell or dispose of any remaining personal estate which came to her husband through her or through the marriage: R.I. 166,23; N.J. 1878,223; Mich. 6264,6275 ; Ky. 52,2,5 ; Ore. 35,5 ; and also (2) authorizing any person owing or hold- ing any money or personal estate to which the husband is entitled in her right, to pay and deliver the same to her upon her personal receipt : Ind. 5133 ; Mich. 6265 ; Ky. 1874, Feb. 13. Any married woman who is living separate from the husband by virtue of any decree of court founded upon her application, may sell, convey, or transfer any estate or inter- est she may have in any real estate as if sole (but this does not apply to real estate that came to her by gift of the husband : N.J.) : N.J. Married Women, 6 and 18 ; Minn. All the proceeds of such sales, and all moneys and personal estate which shall come to the hands of the wife under this article, may be used and disposed of by her during the absence of the husband as her own property in the same manner as if unmairied : Mich. 6266. 712 DIVORCE. (C) In several, a married woman whose husband has absented himself from the State, not. sufficiently maintaining her, has a process in court to enable her to sell, receipt for, and convey her real or personal estate, and any personal estate which may have come to the husband by reason of the marriage, or to which he is entitled in her right ; and she may use and dispose of such property or the proceeds during his absence as if unmar- ried ; and the authority so obtained continues until he returns and claims his marital rights: Mass. 147,31 ; Me. 61,7-8; Vt. 2329-30; Ind. 5132. So, mutatis mutandis, when the husband has been sentenced to confinement in prison : Mass. ; Me. ; Vt. 2334 ; Ind. (D) Any married woman whose husband is not, and has not for one year been, residing in the territory bona fide, may, if of full age, convey her real estate as if sole, affidavit of the husband's absence being made by two witnesses at the time of acknowledgment : Ida. 1874-5, Conveyances, 2-3. Any married woman liviug in separation from her husband and entitled by decree of any court to alimony, etc., may, by her deed to him or any other person, release or bar her dower in any lands whereof her husband may be seized : N.J. Married Women, 17. And in such case (§ 6350) she has a process to obtain an order of court vesting her with all the rights, privileges, and liabilities of a feme sole as to the acquiring, holding, and disposing of property real and personal, making contracts, being liable thei-eon, and suing and being sued thereon in her own name: Vt. 2328; 0. 3111; 1884, p. 209. But after such order, the husband is not hable upon a contract so made by her, or for a tort by her committed : Vt. And she may further transact business in her own name as a sole trader ; and apply her earnings and profits to her support and that of her children, free from the interfer- ence or control or the liabilities of the husband : Pa. Feme Sole, etc., 5 ; Marriage, 27 ; Wis. 2344; W.Va. 122,13. If a husband, being a mariner or at sea, stays away so long without making provision for his wife and children that they are likely to become chargeable on the town ; or if any husband lives in adultery with another woman ; and i-efuses or neglects within seven years to return ; his lands and estate are liable to execution for debts contracted by the wife or guardian of the children for their maintenance : Pa. Feme Sole Traders, 4. If the husband disappears, as in ^ 2510, the wife has all the powers of a feme sole to make contracts and execute deeds, after an administrator ($ 2511) has been appointed: Ind. 2234. Any woman may so be authorized to make contracts under seal or otherwise in her own name : Mich. 6267. She may, if so authorized, make deeds and other instruments in her own name, and do all other acts necessary and proper to carry into effect the powers so granted to her : Mich. 6268. When a husband abandons his wife, or fails to support her, she may be authorized (1) to sell and convey her real estate and any personal estate which came to the husband by reason of the marriage and remains in the State undisposed of: Mo. 3284; (2) and to receive and receipt for such moneys or personal estate held by third persons : Mo. 3285. Any woman living separate from her husband may receipt for, convey, mortgage, lease and devise her real and personal estate as if sole: N.J. 1880,62; W.Va. 65,6; 122,3; Tenn. 3344, 3346. Note. — " As to her own property only. § 6354. Cessation. The power so granted continues (1) until the husband returns, or is released, and claims his marital rights: Mich. 6269,6275; Ky. 52,2,5; Ore. ; (2) or the order of court is set aside on the application of such absent party : Dak. Civ. C. 85 c. All contracts lawfully made by any married woman by virtue of such power (see below) shall be binding on her and her husband in like manner as if their marriage had taken place after the making of such contracts ; and she shall, during the absence of her husband from the State, be liable to be sued thereon as if unmarried : 111. 68,12 ; Mich. 6270; lo. 2208; Ore.; Dak. Civ. C. 85 b. SEPARATION. 713 She shall also be liable to be sued in like manner for all other acts done or liabilities incurred by her during the continuance of the power so granted to her : Mich. 6271 ; lo. ; Ore. j Dak. The decree bars her [or him] from all rights or estate by curtesy, dower, or otherwise in the lands of the other : Minn. 69,5 ; N.M. § 6355. Property and Liabilities of Husband. Any married man living separate from his wife under a judgment or decree of court fouuded on his application may convey, mort- gage, lease, etc., any interest or estate in real property except such as came to him by gift from or through the wife, in the same manner and with the same effect as if unmarried: N.J. Married Women, 16. During such separation without his fault the husband is not liable for debts (but if with or for his fault, he remains liable, in Delaware) : N.J. Divorce, 20 ; Del. V. 14, C. 80 ; Mo. 3283 ; Ga. 1750. If they again cohabit, he is responsible for all debts incurred during their separation : Del. So, he is not liable for any such debts, until she oflfer to return : Nev. 173. And until such allowance or settlement (§6351), the husband is liable for support and necessaries furnished to her and the children in her custody : Gra. 1749. But the husband is not so liable, if the wife be actually living in adultery : Ga. And such liability of the husband may be terminated by notice : Oa. But no notice shall relieve him from liability, if his wife is separated from him for cause of his own misconduct : Ga. When a wife is in fact separated fi:om the husband (without any decree or order of court), the husband remains bound for neces- saries furnished to the wife, as in ordinary cases (Art. 640) : Ga. 1758. When the husband stays away so long that his family are like to become a charge to the town, or lives in adultery with another woman and refuses to return, his real estate is liable for any debts incurred by the wife for necessary support of the family : Pa. Feme Sole, etc., 4. A husband abandoned by his wife is not liable for her support until she offers to return, unless she was justified, by his misconduct, in abandoning him: Cal: 5175; Nev. 173; Dak. Civ. C. 85. Nor is he liable for her support when she is living separate from him by agree- ment, unless so stipulated therein : Cal., Dak. § 6356. Suits. When the husband has deserted or separated from the wife, or neglected or refused to support her, as above, she may protect her reputation by suit for slander or libel : Pa." Marriage, 35 ; Ga. 1755 ; and may sue to recover (enforce any contract relating to : Ga.) her separate earnings or property : Pa." She may also sue for torts to her person : Ga. ; and for torts to her children : Ga. ; but if her husband be the defendant, she must sue by next friend: Pa." So, it seems, in others, a woman living separate as above may sue or defend any cause without joining the husband : R.I. 166,23 ; N.J. Practice, 24 ; Mich. 6267 ; W.Va. 122,12 ; Ky. ; Cal. 10370 ; Nev. 175 ; Wash. 6 ; Dak.* C.Civ. P. 185 ; Mon.Civ. C. 7 ; Ga. 1774. So, if separated by agreement in writing: Cal., Ida., Uta. When a husband (or wife : 111., lo.) has deserted his f^imily, the wife (or the hus- band) may prosecute and defend in his (or her) name which he (or she) might have prosecuted : Pa.= MarHage, 21 and 23 ; 111. 68,3 ; lo. 2564 ; Minn. 66,35 ; Ky. Civ. C. 34 ; Tenn. 3505 ; Ark.<^ 4953 ; Ala. 2901. See also § 6352. No such suit is abated by the husband's return : Ore. 35,6. When the husband has deserted his family, the wife may prosecute or defend any action which she might have prosecuted or defended if sole : Pa. Marriage, 23 ; Ark. 4953 ; Ida. C. Civ. P. 185; Uta. Civ. C. P. 227. So, vice versa, the husband, if the desertion is by the wife : 111. Notes. — " So, also a woman divorced from bed and board ; or *> separated by mutual written agreement. "^ i. e., she may be sued, as to debts for necessaries, the husband having been absent a year ; and may sue upon all oltligations or any cause of action, whethei- be be absent a year or not. ** Applies to the case when there are children born. § 6357. "Wives of Aliens, etc. (Compare § 6430.) In a few states, when a mar- ried woman comes into the State without her husband (in several, when she has so resided in the State six months : N.H., or in Rhode Island, one year ; he never having lived with her in the State : Mass., Me., R.I., Mich., Ky.), she may acquire, 714 DIVORCE. hold, and convey real and personal estate (transact business: Mass., R.I., Mich.), (make contracts : Mass., Me., E,.I., Mich., Ky.), (sue and be sued in her own name : Mass., Me., R.I., Mich., Ky.), (dispose of her property in the State : Mass., Me., R.I., Mich.), (have the exclusive care and guardianship of minor children living with her : N.H., R.I. ; and their earnings, to be expended as if the husband were dead : N.H.), (exe- cute deeds and other instruments in her own name : R.I.), (and has all the rights and powers of a sole trader : Mass., R.I.), as if unmarried : N.H. 183,4 ; Mass. 147,29 ; Me. 61,10; R.I. 165,1-4; Mich. 6283; Ky. 52,2,10. Such woman may be sued as if unmarried upon aU conti'acts or for all other acts made or done by her since her arrival in the State (or since the expiration of such year, respectively) : R.I. ; Mich. 6284. She may execute deeds and other instruments in her own name : R.I., Mich. ; and do all other acts necessary or proper to carry into effect these powers : R.I., Mich. Except that such ■woman may not contract another marriage : N.H. Or sue or be sued for breach of such a contract : N.H. If her husband also become a citizen of the State, and they cohabit, the same effect follows as to the business and contracts of the wife as if the marriage had then been first solemnized ; N.H. 183,5; Me. 61,10; R.I. 165,5; Mich. 6285. If such a woman with husband out of the State obtain a divorce therein, or the husband obtain one elsewhere, she retains the custody, etc., of the minor children living with her: N.H. 183,6 ; R.I. 165,6. Unless the court order otherwise, she not being of good moral character. R.I. 165,7. And may keep her separate earnings and property : R.I. So, the court may aj^point a guardian for such children : R.I. 165,8. See Part IV., Div. 1. No person can take from her the custody of such child, or remove it from the State against her consent : N.H. 183,7. § 6358. EflFect upon Property after Death, etc. No husband who shall have, for one year previous to the wife's death, neglected wilfully, or refused to provide for her, or wilfully deserted her, shall have the right to claim any share in her real or personal estate, under curtesy or intestate laws : Pa. Marriage, 27. So, the decree mentioned in $ 6353 bars all rights of the party defendant to dower, curtesy, etc., in the lands or personalty of the other : Minn., N.M. See $ 6354. § 6359. Louisiana Law. Of the Separation of Property Prayed for by the "Wife during Marriage. The wife may, during the marriage, petition against the husband for a separation of property, whenever her dowry is in danger, owing to the mismanagement of her husband, or otherwise, or when the disorder of his affairs induces her to beUeve that his estate may not be sufficient to meet her rights and claims. The neglect to reinvest the dotal effects of the wife, in cases where the law directs such rein- vestment, is also sufficient cause for the wife to demand a separation of property. The wife must petition for the separation of property, and it can only be ordered by a court of justice, after hearing all parties. It can, in no case, be referred to arbitration. Every voluntary separation of property is null, both as respects third persons and the hus- band and wife between themselves. The separation of property although decreed by a court of justice, is null, if it has not been executed by the payment of the rishts and claims of the wife, made to appear by an authentic act, as far as the estate of the husband can meet them, or at least by a hona fide non-inter- rupted suit to obtain payment. The separation of property, obtained by the wife, must be published three times in the pub- lic newspapers, at farthest, witliin three months after the judgment which ordered the same. If there be no paper published in the place where the judgment is rendered, the publication must be made in that which is published in the place nearest to it. The wife who has obtained the sepai-ation of property, may, nevertheless, accept the part- nership or community of gains which has existed till that time, if it be her interest so to do, and upon her contributing, in case of acceptance, to pay the common debts. She retakes, also, her dowry and all she brought in marriage, or which she acquired sepa- rately during the marriage by inheritance or otherwise. LIABILITIES OF HUSBAND. 715 The separation of property does not impart to the wife any of the rights of a surviving wife; but she presers'es the right of exercising them, in case of tlie death of her liusband. The judgment which pronounces the separation of property, is retroactive as far back as the day on which the petition for tlie same was filed. The personal creditors of the wife cannot, without her consent, petition for a separation of property between her and her husband. Nevertheless, in case of the failure or discomfiture of the husband, they may exercise the rights of their debtor to the amount of their credits. The creditors of the husband may object to the separation of property decreed and even executed with a view to defraud them. They may even become parties to the suit for a sepa- ration of property, and be beard against it. The wife, who has obtained the separation of property, must contribute, in proportion to her fortune and to that of her husband, both to the household expenses and to those of the education of their children. She is bound to support those expenses alone, if there remains nothing to her husband. The wife separated in property has again the free administration of her estate. She may dispose of her movable property and alienate the same. She cannot alienate her immovable property without the consent of her husband, or, if he should refuse it, without being author- ized by the judge. Whenever a marriage shall have been contracted in this State, and the husband, after such marriage, shall remove or shall have removed to a foreign country with his wife, if the husband shall behave or have behaved towards his wife in said foreign country in such a manner as would entitle her, under our laws, to demand a separation of property, it shall be lawful for her, on returning to the domicile where her marriage was contracted, to institute a suit there against her husband for the purposes above mentioned, in the same manner as if they were still domi- ciliated in said place. In such cases an attorney shall be appointed by the court to represent the absent defendant ; the plaintiff shall be entitled to all the remedies aud conservatory measures granted by law to married women, and the judgment shall have force aud effect in the same manner as if the parties had never left the State : La. 2425-2437. CHAPTER IV. — HUSBAND AND WIFE. Art. 640. Liabilities of Husband. § 6400. Note. For the liabilities and distribution of the husband's estate after his death, see Div. I., T. 3, Chaps. 4 and 5 ; after Divorce, see the last chapter. § 6401. General Principles. The laws of a few states enact that the husband is the head of the family, and the wife is subject to him : Cal. 5156 ; Dak. Civ. C. 56; Ga. 1753 ; l^M. 988. Her legal civil existence is merged in that of the husband, except so fixr as the law recog- nizes her separately, either for her own protection, her own benefit, or the preservation of public order : Ga. The husband is bound to support his wife (see Part V. and §§ 6608,6637) : Mass. 1885,176; Ct. 1877,114,1-2; Cal.; Dak.; Ga. 1757; KM. He owes her fidelity, favor, and protection : N.M. " He should make her a participant m all the conveniences be enjoys : " N.M. " He should show her the utmost and every attention in cases of sickness, misfortune, or accident, and provide f.n- her the necessaries of life accord- ing to his condition or ability : " N.M. The wife owes fidelity and obedience to the husband : N.M. She is obliged to live with him : N.M. In many states, it is made a penal ofi-once for the husband to abandon his wife or not to support her according to bis means. See m Part V. Neither the husband nor wife can remove the other or tlieir children from their homestead against the other's consent (unless such husband or wife owning the home- stead provide another suitable homestead in good faith : 111.) : 111. 68,16 ; lo. 2215. 716 HUSBAND AND WIFE. Neither husband nor wife is entitled to recover any compensation for labor performed or services rendered for the other, whether in the management of property or other- wise : Vt. ; 111. 68,8 ; Wis. See § 6422. The husband and wife contract towards each other obligations of mutual respect, as- sistance, fidehty, and suppoit : Cal. 5155 ; Dak. Civ. C. 75; La. 119. The husband may choose any reasonable place or mode of living, and the wife must conform thereto : Cal, Dak. The wife is bound to live with her husband, and to follow hiin wherever he chooses to re- side • the husbaud is obliged to receive her, and to furnish her with whatever is required for the conveuience of life, iu proportion to his means and couditiou : La. 120. The wife cannot appear in court without the authority of her husband, although she may be a public merchant, or possess her property separate from her husbaud : La. 121. The wife must support the husband, when he has not deserted her, out of her separate property when he has no separate property, and there is no community property, and he is unable from infirmity to support himself: Cal. 5176; Nev. 174; Dak. Civ. C. 77. In New Mexico, the husband and wife have a process iu court to compel the other to fulfil the duties above specified : N-M. 989,990. § 6402. Pre-existing Debts of the Wife, (a) A husband, or his separate prop- erty, is not in general liable for the debts of the wife contracted before her mar- riage : Me. 61,4; Vt. 1884,140,3; KJ. Married Women, 10; Pa. Deeds, 104; O. 3110; 1884, p. 209; 111. 68,5; Wis. 2346; lo. 2203,2212; Minn. 69,3; Neb. 1,53,7; Md. 1880,253; Va. 1875, 359,3; N.C. 1822; Ky. 52,2,4; Tenn. 3342; Mo. 1881, p. 161 ; Cal. 5170 ; Ore. 1878, p. 93, § 8 ; Nev. 166 ; Wash. 2405 ; Dak. Civ. C. 83 ; Ida. 1874-5, p. 637,13 ; Wy. 82,6 ; S.C. 2037 ; Ga. 1753 ; Ala. 2704 ; ria. 150,7 ; La. 2398 ; N.M. 1089; Ariz. 1979. The same would follow, in other states, from ^ 6411-2: N.Y., Ind., etc. (B) So, in many, he is not liable on any cause of action against the wife which origi- nated prior to the marriage : N.H. 183,18; Mass. 147,9 ; Ct. 19,5,9 ; lo. ; N.C. ; Mo. And the same would probably follow from A, above. (C) But the husband is, in a few, liable for such debts (1) to the extent of any property acquired from the wife by antenuptial agreement : N.Y. 1853,576,2 ; W.Va. 122,11 ; (2) to the extent of any property received by him from or through the wife : Ind. 5125 ; Ky. ; Mo. ; Col. 2273 ; Ga. Such liability is not extinguished by the wife's death : Ind. 5126 ; Col. 2274. § 6403. Present Debts, (a) As a general principle, the husband is not liable for any separate debts of the wife contracted after marriage : Me. 61,4 ; N.J. Har- ried Women, 10 ; Pa. Marriage, 34 ; 0.« 3110 ; 1884, p. 209 ; 111. 68,5 ; lo. 2203, 2212; Minn. 69,3; N.C. 1824; Ore. 1878, p. 93, § 8 ; S.C. 2037; N.M. 1089; D.C. 730. So, specially, he is not liable on her contracts made (1) in respect to her separate property, trade, business, labor, or services : Mass.'' 147,10 ; Ct.<^ 19,5,9 ; N.Y.'' 1860,90, 8 ; Ind. 5122 ; Mich. 6298 ; Ark. 4626 ; Ai'iz. 1963 ; (2) or for her benefit or that of her family : Ct.,*^ S.C. So, he is not generally liable on any judgment (1) recovered against the wife alone : Mass. 147,9 ; Ark. 4628 ; (2) or for costs in a suit brought or defended by her: Ark. See Part IV. But his consent is presumed to her agency in all purchases of necessaries suitable for her condition, made for the use of herself and family : Ga. 1757. This presumption may, how- ever, be rebutted by proof : Ga. So, he is bound for necessaries as at common law : Minn., Ky., N.M. " If the husband neglects to make adequate provision for the support of his wife, any other person may in good faith supply her with articles necessary for her support, and LIABILITIES OF THE WIFE. 717 recover the reasonable value thereof from the husband : " Cal. 5174 ; Nev. 172; Dak. Civ. C. 84. The husband's property is to be appbeJ first to satisfy any joint liability of the husband and wife for the support of the family ; and the wife is entitled in equity to an indemnity for prop- erty of her own taken for such purpose : Ct. 1877,114,2. Notes. — " Except to the extent of her separate property coming to him by reason of the marriage or under marriage contract. * But the husband is bound, uuless she comply with the provisions of Art. 652. "^ If such contract was made upon her personal credit. <^ Except as to property coming to her by gift of such husband. § 6404. Torts. (A) A husband is not generally liable for torts committed by his wife except (1) under bis actual coercion : Vt. 1884,140,3; Ct. 19,5,9 ; so, (2) when he would be liable even if the relation of marriage did not exist : Me. 61,4; 0. 3110; 1884, p. 209; Ind. 5120; 111. 68,4; Mich. 7714; lo. 2205; Ore. 1878, p. 92, § 4 ; Wash. 2402. See also Execution, Part IV. " Neither husband nor wife, as such, is answerable for the acts of the other : " Dak. Civ. C. 83. (B) But a person is generally liable for torts committed by his wife, child, or servant by his command, or in the prosecution and within the scope of his business, whether voluntary or by negligence : Ga. 2961. See also in Part IV. And every husband living with his wife is jointly liable with her for all damages accruing from any tort committed by her, and costs : N.C. 1833. Aud " nothing in this chapter is to be construed to exempt a husband from liabilities for torts committed by his wife : " Minn. 69,6 ; N.M. 1091. A person may generally recover for torts committed against his wife, child, ward, or servant. See in Part IV. Art. 641. Liabilities of the "Wife." § 6410. Debts of Husband, (a) A wife is not generally liable (nor is her separate property liable) for the debts of her husband (and see § 6420) ; Mass. ; Vt. 1884,140,2 ; Ct. 1877,114,1 ; KJ. Married Women, 15 ; Pa. Marriage, 37 ; 111. 68,5 ; lo. 2203,2212 ; Minn. 69,3 ; Md. 51,19 ; N.C." ; Tenn. 3341 ; Mo. 3295 ; Ark.* 4633 ; Cal. 5171 ; Ore. 1878, p. 93, § 8 ; Nev. 163 and 167 ; Wash. 2405 ; Dak. Civ. C. 83 ; Ida. 1874-5, p. 635, § 5 ; Fla. 150,1 ; N.M. 1089. So, in Virginia, as to his debts contracted before marriage : Va. 1875,359,1. (B) The separate property of the wife (Art. 642) is not bound by any judgment or execution against the husband: Mass. 147,8; Vt. 2323,2324; Md. 51,19; Ky. 52,2, 2 ; Mo. 3295 ; Dak. C. Civ. P. 439 ; Hon. G. L. 866 ; and see Part IV. Nor does such judgment bind his curtesy or other interest in her real estate : Pa. Marriage, 18; Ky. ; Tenn. 3338; Mo. Nor the rents and profits of such her real estate : Ky., Mo., Ore., Dak, Nor tbe proceeds thereof, if sold : Mo. Compare § 6423. (C) But both husband and wife are equally liable for the expenses of the family and the education of the children, aud either or both may be sued : Ct. 1877,114,2 ; 111. 68,15 ; lo. 2214 ; Ore. 1878, p. 94, § 10 ; Wash. 2407 ; Ala. 2711 ; 1881,41 ; N.M. 1089. The wife is liable for necessaries procured for the use and benefit of herself and her children under eighteen : Mon. A debt for necessaries furnished to the family may, in a few states, be enforced against the wife's property, after an execution against the husband is unsatisfied : Pa. Marriage, 15 ; Ala. 2712. So, a judgment or execution against the husband (1) for a debt due for necessaries furnished to the wife or the family, may be enforced against her separate property, real 718 HUSBAND AND WIFE. or personal: Vt. 2324; Mo. 3295-6; Ark. 4624. (2) So, a judgment, etc., for labor or materials furnished in the cultivation or improvement of her separate property : Vt., Mo. Notes. "See § 26. ''As to debts contracted or damages incurred by the husband before marriage. § 6411. Her Own Debts, (a) Debts of the wife contracted before marriage may be enforced against her and her separate property after the marriage : Me. 61, 4 ; E.I. 166,15 ; Ct. 19,5,9 ; N.Y. 1853,576,1 ; N.J. Married Women, 12 ; Pa. Deeds, 104; Ind. 5127; Mich. 6288; Wis. 2346; Minn. 69,2; Md. 1880,253; Del. V. 14,550,2 ; Va. 1875,359,3 ; W.Va. 122,10 ; N.C. 1823 ; Ky. 52,2,2 ; Tenn. 3342 ; Mo. 3296 ; Cal. 5171 ; Nev. 167 ; Col. 2275 ; Dak. Civ. C. 83 ; Ida. 1874-5, p. 637,13; Wy. 82,7 ; Ala. 2704; Fla. 150,7; KM. 1088 ; Ariz. 1979. And a judgment may be recovered against her in her name : Me., Del. Or against the husband and wife jointly : Me. But in others, the action must be brought against the husband and wife jointly : E.T. 166,16 ; N.Y. ; Ind. ; Md. 1880,2.53 ; Va. ; W.Va. ; Col. ; Wy. So, the husband must be served with the summons : N.C. 1824. The judgment may, however, be enforced, as before, only against her separate prop- erty : Me., N.Y., Ind., Md., Va., W.Va. N.C, Col., Wy. § 6412. After Marriage, (a) Debts of the wife contracted by her (or in her name, with her authority : Pa.) after marriage may be enforced against her and her separate property: Me. 61,4; R.I. 166,15; Ct. 19,5,9 ; 1877,114,2 ; KJ. Mar- ried Women, 10 ; Pa. Deeds, 104 ; 0. 5319 ; 1884, p. 65 ; Minn. ; KC.« 1824 ; Cal. 5171 ; Nev. 167 ; Wash. 2406 ; Dak. Civ. C. 83 : KM. 1088 ; D.C. 730. And a judgment may be recovered against her in her name : Me. ; R.I. 166,16 ; 0. Or she may be sued jointly with the husband : Me. ; K.I. ; Md. 51,20 ; Ala. See § 6455. So, a copy of the summons must be served on the husband : N.C. But she cannot be arrested: Me. 61,5. See in Part IV. (b) So, in several states, the contracts made by a married woman in respect to her separate property, trade, business, labor, or services are binding on her and her separate property as if sole (see also Art. 652) : Mass. 147,10 ; Ct. 1877, 114,1; KY. 1860,90,8; Ind. 5123; Mich. 6298; Wash.; Ala. 2711; 1881,41; Ariz. 1963. See also § 6482 ; and § 1974. So, in others, all contracts contracted by her upon her personal credit for her benefit or that of the family : Ct. She may contract debts for necessaries furnished herself or children (N.Y. 1860,90,1 ; Ky.), and for all expenses incurred for the benefit of her separate property, and is sued therefor as in § 6455 : Pa. Marriage, 15 ; Tex. 2854. See also § 6410. Such debts, to bind her real estate, must be evidenced by writing signed by her : Ky. Note. — " When the husband and wife both joined in such debt or contract. § 6413. Judgments recovered against the wife may be enforced against her separate property, as if she were sole : Vt. 1884,140,1 ; 0. 5319 ; 1884, p. 65 ; Ark. 4630 ; and see §§ 6411,6412 ; and in Part IV. § 6414. Torts of the "Wife. A married woman with her separate property is liable for torts committed by her (if not under the husband's coercion: Ct.) : Me. 61,4 ; Ct. 19,5,9 ; Ind. 5120 ; 111. 68,4 ; lo. 2205 ; Minn. 69,2 ; Wash. 2402 ; KM 1088. See also § 6404. If under his coercion, they are jointly liable (compare § 6404, A 1) : Ind. 5121. PROPERTY OF THE WIFE. 719 So, in others, a judgment against the husband for the wife's tort must first be en- forced against her separate property : Pa. Deeds, 104 ; Wy. 82,8. § 6415. After Death. (See also in the Probate Code, Part IV., Division I.) In Maine, the administrator of a deceased married woman whose husband survives may pay (1) all reason- able expenses of her last sicliness : Me. 61,11 ; (2) all debts contracted by her for the benefit of herself or her family for which credit was given her, and for which her husband is cot liable or able to pay : Me. 64,60. Art. 642. Property of the Wife." § 6420. Property Possessed at Marriage. (A) The Real Property of a woman, upon her marriage, remains, in all states, her separate property : N.H. 183,1; Mass. 147,1; Me. 61,1; Vt. 2324; E.I. 166,1; Ct. 1877,114,1; N.Y. 1848,200,1-2 ; N.J. Married Women, 1-2 ; Pa. Deeds, 104 ; Marriage, 13 ; O. 3108; 1884, p. 209; Ind. 2488,5116; 111. 68,9; Mich. 6288,6295; Wis. 2340, 2341 ; lo. 2202 ; Minn. 69,1 ; Kan. 62,1 ; Neb. 1,53,1 ; Md. 51,19 ; Del. V. 14, 550,1 ; V. 15,165,1 ; Va. 1875,3259,1 ; 1877,329,1; W.Va. 122,1-2; N.C. 1840; Ky. 52,2,1; Tenn. 3343; Mo. 3295; Ark. 4621; Tex. 2851; Cal. 5162 ; Ore. 1878, p. 92, § 1 ; Nev. 151 ; Col. 2266 ; Wash. 2400 ; Dak. Civ. C. 78 ; Ida. 1874-5, p. 635,1 ; Mon. G. L. 866 ; Wy. 82,1 ; Uta. C. Civ. P. 569 ; S.C. 2035 ; Ga. 1754 ; Ala. 2705; Miss. 1167; Fla. 150,1 and 3 ; La. 2334; N.M. 1087; Ariz. 1960, 1967 ; D.C. 727. Free from the interference or control of her husband : N.H. ; N.Y. ; N.J. ; Pa. ; 0. 3109, ib. ; Ind. 5117 ; Wis. ; Minn. ; Kan. ; Neb. ; Md. ; Del. ; Va. ; W.Va. ; Ky. ; Ark. 4G24 ; Col. ; Wy. ; Miss. ; Fla. ; D.C. Not liable for his debts : Vt. ; R.I. ; Ct. ; N.Y. ; N.J. ; Pa. ; 0. ; Ind. ; Mich. ; Wis. ; Minn. ; Kan. ; Neb. ; Md. ; Del. ; Va. ; W.Va. ; N.C. ; Ky. 52,2,2 ; Tenn. ; Mo. ; Ark. ; Ore. ; Ct)l. ; Wash. ; Ida. ib. 5 ; Civ. C. 439 ; Mon. ; Wy. ; S.C. ; Ga. ; Ala. ; Miss. ; Fla. ; Ariz. ; N.M. ; D.C. See § 04 10. So, the earnings of the wife are not liable for the debts of the husband : Cal. 5168 ; Dak. Civ. C. 83. See \ 6424. (b) So, in most states, the personal property of a woman, upon her marriage remains her sole and separate property: N.H. ; Mass. ; Me. 61,2 ; RI. ; Ct. ; N.Y 1860,90,1 ; N.J. ; Pa. ; 0. ; Ind. 2488 ; 111. ; Mich. ; Wis. ; lo. ; Minn. ; Kan. Neb. ; Md. ; Del. ; Va. ; W.Va. ; N.C." ; Tenn. 3341 ; Mo. 3296 ; Ark. ; Tex. ; Cal. Ore. ; Nev. ; Col. ; Wash. ; Ida. ; Mon. ; Wy. ; Uta. ; S.C. ; Ga. ; Ala. ; Miss. ; Fla. La. ; N.M. ; Ariz. ; D.C. (C) Every married person has the same right and liberty to acquire, hold, enjoy, and dispose of every species of property as if unmarried : Wash. 2396. (D) But in Connecticut, all the personal property of any woman, whether acquired by her before or aftsr marriage, and the proceeds thereof^, if sold, vest in the husband ; but in trust (1) to receive and enjoy the income during his life, subject to the duty of expending so much as may be necessary for the support of the wife during her life and the children during their minority, and to apply any part of the principal thereof which may be necessary for the support of the wife or otherwise with her written assent ; (2) and upon his decease, the remainder of such trust property shall be transferi-ed to the wife, if living ; otherwise, as the wife may by will have directed ; or in default thereof, to those entitled by law to succeed to her intestate estate ; but if the husband shall have paid liabilities incurred by her before marriage, a court of equity, on application, may discharge tlie said trust, and vest absolutely in him such portion of said property as may be equivalent in value to the amount of the liabilities so paid : Ct. 14,2,3. Note. — « See § 26. 720 HUSBAND AND WIFE. § 6421. Rights of Husband and "Wife, (a) In some States, a husband acquires by marriage no rights whatever to any property of the wife, real or personal : Me. 61,2 ; Ct. 1877,114,1 ; lo. 2203. So, conversely, of the wife : Ct. So, as to the wife's real property and chattels real : Ky. 52,2,1. Neither husband nor wife has, in general, any interest in the property of the other : Cal. 5159 ; Nev. 168 ; Dak. Civ. C. 78. Except (1) " the use thereof :" Ky. (2) And he has power to rent the real estate for not more than three years at a time, and to receive the rent : Ky. (3) Except as to descent, cur- tesy, dower, etc. : Ct. So, in others, the provisions of § 6420 do not affect his tenancy by the curtesy : RI. 166,14 ; Md. 51,20 ; Deh V. 12,572,1 ; and see Art. 330. (B) But in several, he has the management and control of all the wife's separate property (compare § 6427): Tex. 2851; Ida. ih. 6; Ala. 2706; Fla. 150,3; Ariz. 1972. For sales^ see Arts. 647,650. But should he fail or refuse properly to support her and educate her children from the pro- ceeds of her lands, she has a process in court to obtain an allowance : Tex. 2856. No judgment sufiered by a husband, or feoffment or conveyance made by him of the wife's real estate operates as a discontinuance, or impairs her right of action or entry after his death : Ky. 63,1,4, And see in Part IV., Ejectment ; and compare $ 1404. The husband has power to receive any property coming to his wife, and his receipt therefor is a full discharge in law and equity : Ala. 2710. (C) Reduction to Possession. §§ 6420,6422 do not, however, in Missouri, apply so as to affect the husl^and's title to personal property reduced to his posses- sion with the express assent of the wife : Mo. 3296. But it shall not be deemed to have been so reduced by the husband by his use, occupancy, or care thereof, and it shall remain the wife's property, unless, by the terras of a written assent, full authority has been given by her to him to sell or dispose of the same for his own use and benefit : Mo. The fact that a married woman permits her husband to have the custody and control of her separate property is not of itself sufficient evidence that she has relinquished her title to it ; but in such case the husband is presumed to act as her agent or trustee : Ark. 4637. This pre- sumption may be rebutted by evidence establishing a sale or gift of such property by the wife to the husband : Ark. And no husband who during the marriage (the wife not being a free trader) has received, without objection on the wife's part, the income of her separate estate, is liable to account for the same for a longer time than the year next preceding her decease, or her suit for the same ; N.C. 1837. When any sale is made by the wife of her separate property for the benefit of the husband, or where he shall have used the proceeds of such sale with her consent iu vi'riting, it is deemed a gift ; and neither she nor those claiming under her have any right to recover the same : Ida. ih. 7 ; Ariz. 1973. The husband is not required to account to the wife, her heirs or representatives, for the rents, income, and profits of her separate estate ; but they are not subject to his debts : Ala. ; Fla. 150,5. He is debtor to the wife for her property or its rents and profits received by him, but not for more than one year from the receipt of the same ; and if permitted by the wife to use the same for the support of the family, he is not accountable therefor : Miss. 1176. § 6422. Property Acquired since Marriage, (a) All real property acquired after marriage by the wife either (1) by devise or descent (N.H., Me., Vt., R.I., N.Y., KJ., Pa., 0., Ind., 111., Mich., Wis.," lo., Kan., Neb., Md., Del., Va., W.Va., Ky., Tenn., Mo., Ark., Tex., Cal, Ore., Nev., Col., Wash., Ida., Mon., Wy., S.C, Ga., Fla., La., N.M., Ariz.) ; (2) by purchase (X.H., Me., Yt., N.Y., N.J., Pa., O., Ind., 111., Mich., Wis.," lo.. Neb, Md., Del.," Va., W.Va.,° Tenn., Mo., Ark., Wy., S.C, Ga., Fla., N.M.) ; (3) or by gift (N.H., Me., Vt, N.Y.,-^ N.J., Pa., 0., Ind., PROPERTY OF THE WIFE. 721 Til, Mich., Wis.,« To, Kan.,« Neb.,« Md,« Del," Va., W.Va.,« Tenn., Mo, Ark., Tex, Cal, Ore, Nev, Col," Wash, Ida, Mon, Wy,« S.C, Ga, Fla, La, N.M., Ariz.) ; (4) by her own labor (N. Y, 0., Va, Ark, Ore, Nev,* Uta, KM.) ; (5) or in any other manner (R.I, Ct, N.J, Pa., Mich., lo., Minn., Neb., Del., Va.," N.C., Ark., Mon, Wy., Uta., Ga., S.C, Ala., Miss., N.M., Ariz., D.C."), remains her sole and separate property, as in § 6420 specified : N.H. 183,1 ; Me. 61,1 ; Vt. 2322, 2324 ; 1884,140,1-2'; IM. 166,1 ; Ct. 1877,114,1 ; N.Y. 1848,200,3 ; 1860,90,1 ; N.J. Married Women, 3; Pa. Marriage, 13,34; 0. 3108; 1885, p. 131; Ind. 5117; 111. 68,9; Mich. 6295; Wis. 2342; lo. 2202; Minn. 69,1; Kan. 62,1; Neb. 1,53,1; Md. 51,19; Del. V. 15,165,1 ; Va. 1877,329,1 and 2; 1877,266; W.Va." 122,3 ; N.C. 1840 ; Ky. 52,2,1 ; Tenn. 3343 ; Mo. 3295 ; Ark. 4621,4624 ; Tex. 2851 ; Cal. 5162 ; Ore. 35,4 ; 1878, p. 92 ; Nev. 151,165 ; Col. 2266 ; Wash. 2400 ; Ida. ih. 1 ; Mon. G. L. 866 ; Wy. 82,1 ; Uta. C. Civ. P. 569 ; S.C. 2085 ; Ga. 1754 ; Ala. 2705 ; Miss. 1162 ; Fla. 150,1 and 4 ; La. 2334 ; N.M. 1087 ; Ariz. 1960 ; D.C. 727. See also § 6423. (b) So, in most states, of all personalty acqnired (1) by devise or descent : N.H. ; Me. ; Vt. ; N.Y. ; N.J. ; Pa.; 0.; Ind. ; 111. ; Mich. ; Wis. ; « lo. ; Kan. ; Neb. ; Md. ; Del. ; « Va. ; Mo. 3296 ; Ark. ; Tex. ; Cal. ; Ore. ; Nev. ; Col. ; Wash. ; Ida. ; Mon. ; Wy. ; S.C. ; Fla. ; N.M. ; Ariz. ; (2) gift : N.H, Me., Vt.,« N.Y.," N.J., Pa., 0., Ind, 111., Mich., Wis.," lo., Kan.," Neb.," Md.," Del.,'' Va., Mo., Ark., Tex., Cal., Ore., Nev., CoL," Wash., Ida., Mon., Wy.," S.C, Fla., Ariz. ; (3) purchase : N.H., Me., Vt., N.Y., N.J., Pa., 0., Ind., Ill, Mich., Wis.," lo., Nel).. Md., Del.," Va., Mo., Ark., Wy., S.C, Fla. ; or (4) in any way : Vt., E.I., Ct, N.J., Mich, Minn., Del.," Va.," Tenn., Ark., Mon., Wy., Uta., S.C, Ala., Miss., N.M, Ariz., D.C." So, in most of these, (5) her personal earnings (see also § 6522) : N.H. ; Me. 61,3 ; E.I. ; Ct. ; N.Y. ; N.J. ih. 4 ; Pa.<^ Marrinrjc, 42-3 ; 0. ; 111. 68,7 ; Wis. 2343 ; lo. 2211 ; Minn. ; Kan. 62,4 ; Neb. 1,53,4 ; Md. 51,23 ; 1882,265; Del. V. 14, C 550,3 ; Va. ; Mo. ; Ark. ; Ore. ; Nev.* 165 ; Wash. 2404,2423 ; Uta. ; N.M. ; Ariz. 1881,37. So, (6) the earnings of her minor children living with her when she is separate from the husband : Wash., Ariz. And see § 6350. So, profits of a trade carried on by her separately: N.Y., N. J., Kan., Neb., Ark. (For profits of a trade, see also Art. 652.) Except (1) when acquired by pay- ment for or pledge of the property of the husband : N.H. ; (2) except when ac- quired by her personal industry : Vt. And all work performed by a married woman for a person other than her husband is pre- sumed to be on her separate account, unless there is an express agreement to the contrary : Mass. 147,4. Her eaminars, goods, and credits may be attached by trustee process or otherwise, as if sole : N.H. 249,41. Except that earnings accruing from labor performed for her husband or in his employ, or payable by him, shall not be her separate property : Vt. ; 111. 68,8 ; Wis. So, nothing herein authorizes any claim by either husband or wife against the other for personal services : Me., Vt. Notes. — " Except if derived by gift or purchase, etc., from the Imsband. * But only when the husband has allowed her to appropriate the proceeds of such labor. '' But she must first file her peti- tion in court that she intends to claim such earnings, which petition is duly recorded ; see also Art. 6.52. § 6423, Property of the Husband. By the codes of a few states, all property, real and personal, of the husband, owned or claimed by him before marriage, and that acquired afterwards by gift, devise, or descent, as also the increase of all lands thus acquired, shall be his separate property: Tex. 2851 ; Cal. 516.3; Nev. 151 ; Wash. 2408 ; Ida. 1874-5, p. 635, § 1 ; Ariz. 1967. The same would be law everywhere. 4(3 •j-22 HUSBAND AND WIFE. Neither husband nor wife has any interest in the property of the other; but neither can be excluded from the other's dwelling : Cal. 5157 ; Dak. Civ. C. 78. § 6424. Special Kinds of Property. (A) In two states, every woman resident in the State who shall receive a patent for her own inventions under United States laws may hold and enjoy the same and all proceeds to her separate use, and transfer and dispose of the same as if unmarried : N.Y. 1845,11,1 ; W.Va. 122,7. But this act shall not authorize her to contract any pecuniary obligations to be discharged at a future time : N.Y. (B) When the husband becomes insane, the wife may hold to her own use the earnings of minor children during such insanity : N.H. 183,2 ; and see ^ 6422. (C) The proceeds of her separate estate sold (or of a mortgage paid : Del. ; or stock sold: Del.) remain her separate property: Vt. 2-324; R.I. 166,2; Ct.« 14,2,1 ; Kan. G2.1 ; Neb. ; Md. ; Del. V. 12,572,2 ; Ky. 52,2,3 ; Tenn. 3340 ; Mo. ; Ark. 4624 ; Ala. 2709. She may invest and manage the same in her name: Ct., N.J., Md., Del., Ark., Ala. Compare § 6450. Or a trustee may be appointed: R.I. Compare $ 6427. They cannot be paid by any person except by her consent, upon separate examination : Tenn. (D) So, in several, when her real estate is taken, or damages paid, under eminent domain, she has a process in court to secure the investment of the proceeds to her own use : Mass. 147,14 ; Me. 61,9 ; Vt. 2326 ; Mo. 3289 ; and see in Part IV. (B) Stocks or bonds given by a parent to a daughter, with the proceeds and dividends thereof, belong to her, if married, in her own right, and are not subject to her husband's debts (except for necessaries : see § 6412) : Vt. 2323. So, any stock in the name of any female, and ex})ressed on the face of the certificate to be for her use, belongs to her free from all claims on the part of the husband, and passes by her will or by descent to her heirs, and she may receive dividends and give receipts as if unmarried, but may not anticipate the same or give orders in advance therefor : Ky. 52,4,15. (F) All real estate conveyed to a married woman in consideration of property acquired by her personal services during coverture shall be held by her to her sole and separate use : Ct. 14,2,1. (G) The savings from the income of the separate estate of the wife are her separate property: Minn.; N.C. 1837; Mo. (H) The rents and profits of her real estate : N.Y. ; N.J. ; 0. ; Ind. ; Mich. ; Wis. 2340; Minn. ; Kan. ; Neb. ; Va. ; W.Va. ; Temi. 3343 ; Mo. 3295 ; Ark. ; Tex. 2851 ; Cal.; Nev. 151; Col. 2266 ; Wash.; Idd J> ib. 9; Mon. ; Wy. ; Uta. ; Ariz. 1975; 1885,5. (I) All sums recovered in suits by the wife concerning her separate property : R.I. 166,17 ; 204,26 ; ; or in ordinary suits for tort, etc. : 0., Mo. And compare ^ 6454. (J) A husband and wife may hold property (1) as joint tenants, as tenants in com- mon, or as community property : Cal. 5161 ; Nev. 158; (2) as joint tenants or tenants in common : N.Y. 1880,472; Dak. Civ. C. 82; and probably in other states. See § 1373. So, real property held by her in joint tenancy with her husband is her separate property : Wis. Notes. — " 7/" invested in her name or in that of a trnstpp. ^ But only when so declared in the grant or devise to her ; otherwise they are community property. § 6425. Death of the Husband. The widow of any person who shall die testate or in- testate may demand and receive from the executors and administrators all the personal prop- erty which at or immediately before coverture between the decedent and his said widow belonged to her, or which during coverture came to her by gift, bequest, or inheritance, and which at the death of the deceased remained in his possession : N.J. Executors, etc., 13. Grenerally her sepai'ate property remains hers upon his death ; and so expressly, in a few : R.I. 166,1 ; Ind. 2488. See also ^§ 3105-6,3109, PROPERTY OF THE WIFE. 723 § 6426. Descent and Distribution. When a married woman dies intestate, her property, real and personal, descends to her heirs, and administration or distribution may take place accordingly : Me. G1,G ; Ind. 2488 ; Del. V. 14,550,5. But nothing in this article prevents or affects the right of the husband to administer without rendering account upon her personal estate not disposed of by will : R.I. 166, 14; and see in Part IV., Div. I. Except that (1) the husband has his share under the laws of descent, etc. (Div. I, Title III) ; (2) the husband has a lien for improvements made on a deceased wife's real estate, when he has no curtesy: Ct. 1885,110,40. § 6427. Trustees for Married Women may on the woman's petition be appointed by the proper courts to hold her separate property in trust for her and such uses as she may declare in the conveyance or as the court order : N.H. 183,14 ; Mass. 147,13; R.I 166,18; Pa. Marriage, 12 ; Trustees, 56; Md. 51,21; Ida. ih. 8; Ariz. 1974. See also, generally, in the Probate Code, § 6428. Paraphernalia. Certain property of the wife called (in Georgia) parapher- nalia, are not, in a few states, subject to the debts or control of the husband, although given to her by him or any other person : R.I. 166,4 ; Col. 2266 ; Ga. 1773. This property consists (1) of her wearing apparel; Col., Ga. ; (2) of that of her children : Ga. ; (3) of her ornaments suitable to her condition in life : Ga. ; so, specially, her watch : Col., Ga. ; jewelry : R.I., Col. ; silver: Col. ; table-ware: Coh ; plate : R.I. ; and, generally, of all such articles of property as have been given to her for her own use and comfort : Ga. 1773. Louisiana Law. All property, which is not declared to be brought in marriage by the wife, or to be given to her in consideration of the marriage or to belong to her at the time of the marriage, is paraphernal. The wife lias the right to administer personally her paraphernal property, without the assist- ance of her husband. The paraphernal property, which is not administered by the wife separately and alone, is considered to be under the management of the husband. When the paraphernal property is administered by the husband, or by him and the wife indifferently, the fruits of this property, whether natural, civil, or the result of labor, bchmg to the conjugal partnership, if there exist a community of gains. If there do not, each party enjoys, as he chooses, that which comes to his hand ; but the fruits and revenues which are existing at the dissolution of the marriage, belong to the owner of the thing which produced them. The wife who has left to her husband the administration of her paraphernal property, may afterwards withdraw it from him. The husband, who administers the paraphernal property of his wife, notwithstanding lier formal opposition, is accountable to her for all the fruits, as well those existing as those wliich have been consumed. If all the property of the wife he paraphernal, and she have reserved to herself the adminis- tration of it, she ought to bear a proportion of the marriage charges, equal, if need be, to one half her income. The wife may ahenate her paraphernal property with the authorization of her husband, or in case of refusal or absence of the husband, with the authorization of the judge; but should it be proved that the husband has received the amount of the i)araphernal property thus alien- ated by his wife, or otherwise disposed of the same for his individual interest, the wife shall have a legal mortgage on all the property of her husband for the reimbursing of the same. ^ The husband may release the mass of his property from this legal mortgage, by executing a special mortgage in the manner required in $ 6429 for dotal effects. The wife has, even during marriage, a right of action against her husband for the restitu- tion of her paraphernal effects and their fruits as above expressed : La. 2383-2391. § 6429. Louisiana Law. The separate property of the wife is divided into dotal and extradotal. 724 HUSBAND AND WIFE. Dotal property is that wliich the wife brings to the husband to assist him in bearing the expenses of the marriage establishment. Extradotal property, otherwise called paraphernal property, is that which fm-ms no part of the dowry : La. 2335. Civil Law of Dowry. By dowry is meant the effects which the wife brings to the husband to support the expenses of marriage. Whatever in the marriage contract is declared to belong to the wife, or to be given to her on account of the mamage by other persons than the husband, is part of the dowry, unless there be a stipulation to the contrary. The settlement of the dowTy may include all the present and future effects of the wife, or her present effects only, or a part of her present and future effects, or even an individual object. The constitution in general terms of all the effects of the wife, does not include her future effects. Dowry cannot be settled, nor can it even be increased during the marriage. Dowry can be settled either by the wife herself, or by her father or mother, or other ascend- ants, or by other relations, and even by strangers. If the father and mother settle jointly a dowry, without distinguishing the part of each, it shall be supposed to be constituted by equal portions. If the dowry be settled by the father alone, for paternal and maternal rights, the mother, although present at the makiug of the contract, shall not be bouud ; but the father alone shall remain answerable for the whole of the dowry. If the surviving father or mother settles a dowry for paternal and maternal effects, without specifying the poi'tions, the dowry shall be first taken out of the rights of the future wife in the succession of the deceased father or mother, and the rest out of the estate of the person who settled the dowry. Although the daughter who has received a dowry from her father and mother may have effects belonging to her which they enjoy, the dowry shall be taken out of the estate of the person settling the dowry, unless there be a stipulation to the contrary. Those who settle a dowry are bound to the warranty of the things thus settled. The interests of the dowry begin, of right, from the day of the marriage, against those who have promised the same, although there may be time given for the payment, unless there be a contrary stipulation. The dowry is given to the husband fur him to enjoy the same as long as the marriage shall last. The action which the husband has to recover the dowry from those who have settled the same, is prescribed against by the same space of time as all other personal actions. The income or proceeds of the dowry belong to the husband, and are intended to help him to support the charges of the marriage, such as the maintenance of the husband and wife, that of their children, and other expenses which the husband deems proper. The husband alone has the administration of the dowry, and his wife cannot deprive him of it ; he may act alone in a court of justice for the preservation or recovery of the dowry, against such as either owe or detain the same, but this does not prevent the wife from remaining the owner of the effects which she brought as her dowry. In case, however, of the husband's absence or neglect to sue for the dotal effects of the wife, she may sue for them herself, having first been authorized by the proper judge. It may likewise be stipulated by the marriage contract that the wife shall receive annually, upon her own acquittances, a part of her revenue for her maintenance and personal wants. The husband is not bound to give security upon his receiving the dowi'y, unless he has been bound to do so by the marriage contract. If the dowry, or part of it, should consist in movable effects, valued by the marriage con- tract without declaring that the estimated value of the same does not constitute a sale, the hus- band becomes the owner of such movable effects and owes nothing but the estimated value of the same. The ownership of dotal immovables, whether valued or not, can never be transfen'ed to the husband, even by express agreement. An immovable bought with the dotal funds is dotal. It is the same with respect to the immovable given in payment of a dowry settled in money. PROPERTY OF THE WIFE. 725 Immovables settled as a dowry can he alienated or mortgaged during the marriage neither by the husband nor the wife, nor by both together, except as is hereinafter expressed. The wife may, with the authorization of her husband, or, on his refusal, with the authoriza- tion of the judge, give her dotal effects for the establishment of the children she may have by a former marriage ; but if she be authorized only by the judge, she is bound to reserve the en- joyment to her husband. She may likewise, with the authorization of her husband, give her dotal effects for the establishment of tlieir common cliildren. Immovables settled as dowry may be alienated with the wife's consent, when the alienation of the same has been allowed by the marriage contract ; but their value must be reinvested in other immovables. The dotal immovables may be likewise sold, with the authorization of the judge, at public auction, after three advertisements or publications in the usual places or in the newspapers, for the purpose of liberating from jail eitlier husband or wife ; of supplying the fiimily with ali- mony, in the cases provided for under the title : Of Father and Child (Art. 660) ; of payiug the debts of the wife or of those who settled the dowry, when such debts are of a certain date prior to the marriage contract ; or for the purpose of making heavy repairs indispensably necessary for the preservation of the immovable settled as a dowry ; and, in fine, when the immovable is held undivided with a third person, and the same is ascertained not to be susceptible of being divided. In all such cases, what remains unemployed out of the proceeds of the sale, above the neces- sities which have been the occasion of the sale, shall remain dotal effects, and shall be laid out as such for the benefit of the wife. The wife may also mortgage, or otherwise incumber, her dotal property in the cases men- tioned in the fifth chapter of the title : Of Husband and Wife, by complying with the formali- ties therein required. If, except as above expressed, the wife or husband, or both jointly, alienate the dotal estate, the wife or her heirs may cause the alienation to be set aside after the dissolution of the marriage ; and no prescription shall run during the marriage in bar of this right. The wife shall have the same right after the separation of property. Dotal imTnovables not declared alienable by the marriage contract are imprescriptible during the marriage ; they become prescriptible after the separation of property. With respect to the effects of the dowry, the husband is subject to all the obligations of the usufructuary. If the dowry be likely to be lost, the wife may sue for a separation of property, as will be explained hereafter. If the dowry consist of immovables, or if it consists of movables not valued by the marriage contract, or valued with the declaration that the valuation is not intended to divest the wife of her property in the same, the husband or his heirs may be compelled to restore the same with- out delay after the dissolution of the marriage. Should the dowry consist of a sum of money, or movables valued by the marriage contract without a declaration that the estimated value is not intended to convey the property of the same to the husband, the restitution of the same cannot be enforced until one year after the dissolution. If any of the immovables, the ownership of which is vested in the wife, have perished or grown worse by use, and without any neglect on the part of the husband, he shall be bound to restore only such as may remain, and in the situation in which they are ; nevertheless, the wife may, in all cases, take back her linen, clothina:, and jewels in her actual use, under the obligation of accounting for their value, when such linen, clothes, and jewels have been, m the first instance, settled with estimation. If the dowry includes bonds or credits which could not be recovered, whether owmg to tbe insolvency of the debtors or otherwise, but not owing to the fault or neglect of the husband, he shall not be answerable for the consequences, and shall be bound only to restore the mstru- ments or vouchers upon which the credits are grounded. i j- i • t If a dowry consist of a usufruct, the husband or his heirs, at the time of the dissolution ot the marriage, are bound only to return the right of the usufruct, and not the profits which ac- crued during the marriage. i . -u If the dowry consists, in whole or in part, of herds or flocks, not valued m the marna-e contract, or valued with a declaration that the estimated value does not deprive the wite ot her 726 HUSBAND AND WIFE. property in the same, the husband shall be bound only to deliver such proportion of the incrcnso or young proceeding from such flocks and herds during the marriage as shall be necessary to complete the whole number of head of cattle that he origiually received. If the marriage has lasted ten years since the time at vehich the payment of the dowry became due, the wife or her heirs may claim the same from the husband after the dissolution of the marriage without being bound to prove that the husband has received it, unless the hus- band shall satisfactorily prove that he has uselessly done everything in his power to obtain the payment of the same. This responsibility of the husband does not hold when the wife herself has promised the dowry, for in such case neither she nor her heirs could claim what she has not paid. If the marriage be dissolved by the death of the wife, the interests and jirofits of the dowry to be returned run of right to the benefit of her heirs from the day of the dissolution. If it be by the death of her husband, the wife has her choice either to claim the interests of her dowry during the year of mourning, or to claim a sustenance to be taken out of the suc- cession of her husband. But in both cases she has a right during that year to be supplied with habitation and mourning dresses out of the succession, which charges shall not be deducted out of the interests due to her. If the lease which the husband has granted of the dotal immovable has more than a year to run at the dissolution of the marriage, it shall be dissolved at the end of a year from the dissolution, if the lessee does not prefer to quit sooner the property rented. The wife has a legal mortgage on the immovables, and a privilege on the movables of her husband, to wit : — 1. For the restitution of her dowry, as well as for the replacing of her dotal effects which she brought at the time of her marriage, and which were alienated by her husband, and this from the time of the celebration of the marriage. 2. For the restitution or the replacing of the dotal effects which she acquired during the mar- riage, either by succession or by donation, from the day when such succession devolved to her, or such donation began to have its effect. The privilege granted by the preceding article cannot in any case extend to immovables, and can never affect the riglits of creditors, whose mortgage is prior to that of the wife. When by marriage contract, the parties, being of age, shall agree that the legal mortgage of the wife shall exist only on one or more immovables belonging to the husband, the immov- ables and other property n ' scrij)tij the court: 0., Col. In case of a second adoption of the same person, the consent of the person previously adopting is required : Mass.* (7) The consent of the ADOPTION. 761 selectmen in the town where the chikl resides is necessary (a) if the child be an orphan : Ct (/3) if the child be a foundling under one year old, and they have charge of it : Ct. (8) The consent of the overseers of the poor is required, there being no guardian or next friend, if the child be an orphan : Pa., Mich. (9) And if the child has been supported (for a year) by any charitable institution, such institution must consent : Pa., Mich., Xeb. So, in many other states, if the child is an inmate of such institution. Notes. — « But the consent of such guardian or next friend is in New Hampshire only required when neither parent is living ; or when the consent of the parent is dispensed with for cause of deser- tion, etc., as in the following notes. * Such parent's consent is not required when the person adopted is of age. "^ Such parent's consent may be dispensed with if he or she be insane : Mass. ; Me. ; R.I. ; N. Y. ; N.J. ; 0. ; Ore. 13,63 ; Nev. ; Col. (or, in Rhode Island, under guardianship ; or, in N.Y., Cal., Dak., Ida., " deprived of civil rights.") '^ So, if he or she be imprisoned in the penitentiary (and, in Massachusetts, Rhode Island, three years of his sentence remain unexpired at the time of the petition for adoption). * So, if he has wilfully deserted and neglected to provide proper maintenance for the child (and such desertion is continued for two years preceding : Mass. ; three years : N.H. ; one year : R.I., 111., Ore.). -^ So, if he has suffered such child to be supported for more than two years previously by a charitable institution, or as a pauper. » So, if he has been convicted of being a common drunk- ard ^ or a night-walker or lewd person, and has failed to provide proper care and maintenance for the child. * The fact that a person's consent is required by this section does not prevent his being the per- son adopting, i A parent's consent may be dispensed with when he or she has been divorced for adul- tery or cruelty ; * or when he or she has been judicially deprived of the custody of the child. ' In these states, he need only be a party of record to the proceeding. "» But in Georgia it seems the consent of the mother is not necessary, unless the father be dead or has abandoned his family. " When his residence is unknown. § 6643. Form of Consent. (A) Such consent must be evidenced by writing ; N.H. 188,2 ; Mass. 148,2 ; Me. 67,33 ; RI. 164,2 ; N.J. App. Infants, 6 ; 0.3137: Wis. 4022 ; Neb. ; Cal." 5226, Amt. ; Ore. 13,62 ; Nev.« 1885,24,7 ; Col. 1885, p. 17, § 1 ; Wash. 1667 ; Ida.* 1885, p. 25 ; Wy. «'* 2,6 ; Uta ih. 2 ; Ariz. 1886. The writing must be duly acknowledged : N.J. ib. 6 ; Neb. ; Cal. ; " Nev." Or wit- nessed : Neb., Uta. (B) In others, the parents and the child adopted must appear in court to give con- sent : Ind. ; Kan. 67,6 ; Neb. ; Ark. ; Cal. ; Nev. 188.5,24,2 ; Dak. ; Ida. ib. 6; Wy. 2,2 ; Uta. So the person adopting : Cal., Neb., Dak., Ida. So, of the child : Wis. So the persons whose consent is necessary : Cal., Neb., Dak. All must sign the petition or agreement : Ct., N.Y., Cal., Dak., Ida. A giving up in writing of a child for the purpose of adoption to a charitable institution oper- ates as a consent to any adoption subsequently decreed : Mass. 148,3 ; Col. And in many states, the parties whose consent is necessary (1) must all sign a recorded instrument: lo. 2309 ; Neb. 2,797; Mo. 601. See § 6641, B. (2) They must be parties to the proceeding (see § 6642, note ') : N.C. 6 ; Miss. Note. — "If the parties are out of the State, or out of the county. § 6644. Appeal. The petitioner for adoption, or the person adopted, by next friend, may appeal to the Superior or Supreme Court from the decree of adoption : N.H. 188, 7; Mass. 148,11 ; Me. 67,36; E.I. 164,9; Ore. 13,69. And if any person is adopted while a minor, he may dissent within one year after coming of age, and the adoption thereupon becomes void : Vt. 2542. The order of adoption may be revoked at any time for cause : Me. 67,38 ; Ct. 14,4, 3 ; N.C. 5. A parent not having had notice may have the decree reversed at any time within a yeai', if any of the allegations in the petition are disproved: Vt. 2539 ; R.I. 164,10 ; Ore. 13,70. § 6645. Effect of Adoption : Status, (a) The name of the person adopted may be changed by the decree, deed, etc., to that of the person adopting : N.H. 188,6 ; Mass. 148,6 ; Me. 67,32 ; Vt. 2536 ; E.I. 164,1 and 11 ; N.Y. 1873,830, 10 ; N.J. iK 1 ; Pa. Adoption, 1 ; 0. 3137 ; Ind. 825 ; 111. 4,1 ; Mich. ; Wis. 4023 ; 762 INFANTS. lo. 2308; Minn. 124,30; Kan. 67,7 ; Neb. 2,800 ; Del. V. 17,612,3; N.C. 1885, 390 ; Tenn. 4391 ; Cal. 5228 ; Ore. 13,61 and 73 ; Nev. 1885,24,6 ; Col. 1885, p. 17, § 1 ; Wash. 1667 ; Dak. Civ. C. 114 ; Ida. ih. 8 ; Wy. 2,10 ; Uta. ih. 5 ; Ga. 1788 ; Ala. 2745 ; Miss. 1496 ; Ariz. 1887. So (when the adoption is made by simple deed) it may be so changed by decree of the Pro- bate Court or County Court : Mo. 602. (b) The general effect of adoption (with certain exceptions as to successions, etc. ; see §§ 6646,6647) is to put the parties in the relation of parent and child, with all the legal consequences : N.H. 188,4 ; Mass. 148,6 ; Me. 67,34-5 ; Vt. 2541 ; RI. 164,6-7 ; 1885,110,66 ; Ct. 14,4,2 ; N.Y. 1873,830,1 and 10 ; KJ. 1882,185 ; Pa. ; Ind. 826 ; 111. 4,3 and 5 ; Mich. 6379 ; Wis. 4024 ; lo. 2310; Minn. 124,31 ; Kan. 67,6 ; Neb.<^ 2,800 ; Del. ; N.C.* 3 ; Ky. 31,18 ; Tenn.M390 ; Mo. 601 ; Ark. 1885,28,4 ; Cal. 5226, Arat. ; 5228 ; Ore. 13,67 ; Nev. 1885,24,2 and 6 ; Col. ih. § 3 ; Wash. 1669,1670 ; Dak. Civ. C. 112 and 114 ; Ida. ih. 8 ; Wy. 2,4 ; Uta.'^ ih. 5 ; Ga. 1788 ; Miss. ; Fla. ; N.M. 1083 ; Ariz. 1888. (C) And so the natural parents are divested of all legal rights in respect to the child : KH. 188,5 ; Me. 67,35 ; Vt. 2541 ; E.I. 164,8 ; N.Y. 1873,830,12 ; N.J. 1882,185 ; O. 3140 ; 111. 4,8 ; Wis. ; Minn. 124,32 ; Kan. 67,5 ; Neb. 2,797 ; Cal. 5229 ; Ore. 13,68 ; Nev. ; Col. ih. § 4 ; Wash. 1670 ; Dak. Civ. C. 115 ; Ida. ih. 9 ; Wy. ;Uta. ih. 2 ; Ariz. 1889. So, in detail, they are relieved from all legal duties : N.Y. ; N.J. ib. 9 ; Nev. ; Col. ; Wash. ; Ida. ; Uta. ib. 7 ; Ariz. They lose the right of custody or control : Uta., Ariz. And the right to the child's earnings or services : Uta. (D) And the child adopted is relieved of all duties as to his natural parents. In detail, he is freed (1) from all legal obligations of maintenance in respect to them : N.H., Me., Vt., E.I., 0., Ill,, Wis., Minn., Ore,, Col., Wash. ; or (2) of obedience to them : N.H., Me., Vt., E.I., N.J., 0., 111., Wis., Minn,, Ore., Col., Wash, Notes. — " But in these states the parties may stipulate otherwise in the agreement. * The parties may stipulate whether the adoption shall endure for life or only during minority, " Only when so stipulated in the aer stirpes in all cases. § 3102. Same Case : Personalty. NeW MEXICO. The personal property is distributed as the estate descends, except as to the widow's or husband's share, in all cases. Strike out KlU. in par. (a) (1), and add NJL after par. (a) (2). § 3103. Children Dead, Grandchildren Living, Wife or Husband Dead. NeW Mexico. Append the note signs *''' to the reference to New Me.xico in par. (b), and add JVote '^ If grandchildren only are cdive, they shall inherit per stirpes, says the statute of 1887 ; hut the context shows that the legislature meant per capita, and used the phrase ignorantly. § 3105. Children and Wife or Husband Living. CONNECTICUT. Append the note sign * to the other note signs to Connecticut in pars, (a) (1) and (C) on p. 392 ; and add to the section Note * This intestate share is subject to the laws affecting dower estates (§§ 3231-2). New Mexico. In such case the widow takes one half the real estate remain- ing, if there was only one child surviving or leaving issue ; otherwise one third, free of all claims of creditors. Except that when such estate exceeds 820,000 in value she is only entitled to a fifth ; and the Indiana provisions are followed generally that a widow re-marrying cannot alienate such estate, and if she die the estate reverts to the children by a former marriage, etc., etc. The husband in sucli case takes one third the surplus real estate in fee, as in Indiana. In detail, add NJD 1887,32,20 after Fla. at the end of (a) (2), KM. 1887,32,25 after par. (a) (5), and N.M. after Ind. at the end of par. (a) (5). Between the 1st and 2d pars, of (a) (5) the following should be inserted : In Nevj Mexico, sice takes one third of the real estate left at his decease, free of all claims of creditors : N.M/ 1887, 32,17. And insert N.M. 3 887,32,18 after Ind. in the 1st line of p. 392; N.M. after Ind. in the 2d line; N.M. 1887,32,21 after Ind. in the 4th line ; and N.M. 1887,32,19 after /?ic?. in the 6th line; and add to the notes '$10,000, in New Mexico ; but this is evidently a misprint. Arizona. In Arizona, in such case, the widow takes one third the real estate for life, and the husband the same. Add Ariz.''^'^ after par. (A) (2) ; and Ariz. after Miss, in the 2d par. of (C) on p. 392. Strike out a7id Arizona in the last par. Add to note " to this .section This share may be affected by marriage settlement ; see § 6440. § 3106. Same Case : Personal Property. OhiO. Change the note sign * to * in the reference to Ohio in par. (A) (1) ; and add 0.' before Mich, in par. (b) (2), the husband's share being the same as the widow's, by the new statute. Strike out the citation 0. 3109 in par. (B) (8), and change the word one in the preceding line to some. New Mexico. One half the personal property goes to the widow if only one child, otherwise one third. The husband's share appears to be always one third. FIRST SUPPLEMENT: 18SG, 1887. 45 Add KMf 1887,32,21 at the end of par. (a) (1), and KM.^ at the end of par. (A) (2), and N.M. 1887,32,22 at the end of par. (B) (6). Arizona. Both the widow and husband take one third the surplus property, irrespective of the number of children. Add Ariz." after par. (A) (1), and Ariz. after par. (B) (2), § 3107. No Issue : "Wife or Husband Dead. Idaho. If there are no descend- ants living, the estate descends to the father and mother equally. Strike out Ida. in par. (a), and add Ida. after Wash, in par. (c). New Mexico. In such case the real estate descends half to tlie father and mother, the other half to the brothers and sisters and their descendants ; but see § 3141 below. Add N.M. f at the end of par. (G). Arizona. Eeal estate descends, as in Idaho, to the father and mother equally. Strike out Ariz, in par. (A), and add Ariz, to par. (C). Connecticut. Substitute (c) : If the intestate left no issue, such estate goes to the brothers and sisters and their issue of the blood of such ancestor; if none, to the children of such ancestor and their issue ; if none, to the brothers and sisters of such ancestor and those who legally represent them, provided that if such intestate be a minor and shall not leave any lineal descendants, or brothers or sisters of the whole blood, or their descendants, or any parent, the estate goes equally to the next of kin of the blood of such ancestor or person from whom it descended ; and if none, to the next of kin of the intestate generally : Ct. § 3109. Same Case : Wife or Husband Living. New MEXICO. When there is no issue, the widow or husband takes three fourths of the real estate, the re- mainder to the father and mother jointly, as in Indiana. Add N.M.'^ 1887,32, 23 to the end of par. (b). Connecticut. Add the note sign * to the reference to Connecticut in par. (c) and par. (B) on p. 396 ; for the note see § 3105. Arizona. Half the real estate goes to the widow or her husband, the other half as before. Add Ariz" after S.C. in par. (c). § 3110. Same Case : Personalty. OlIIO. If there is no issue all the sur- plus personalty goes to the widow or her husband. Insert 0." before ///. in par. (A). Alabama, Arizona. So, as to the widow, in Alabama, and the widow or hus- band in Arizona. Insert Ala. after Wash, in par. (a), and Ariz." at the end of par. (a). Strike out Ala. in par. (c). Connecticut. In marriages before April 20, 1887, the husband takes all tlie surplus. Insert Ct. after R.I. in par. (f) ; see § 3105 note •'. § 3111. No Issue ; No "Widow or Husband, Father or Mother Dead. IDAHO. If the mother be dead all the estate goes to the father. Insert Ida. after Wash. in par. (a) (1) ; and if the father be dead, it all goes to the mother. Insert Ida. after Wash, in par. (b) (1), and strike out Ida.^ in (b) (2) in both places. Arizona. The Texas provision is followed, that the brothers and sisters take the share of the mother if either be dead. Insert Ariz.* after Tex. throughout par. (a) (2) ; if there be no brothers and sisters or their issue, the whole goes to the father. Strike out the note sign * * to Arizona in par. (b) (2), and substitute the note sign * ; and strike out Ariz.^ in the 2d line below. Nebraska. If the father be dead all the real estate descends to the mother. 46 AMERICAN STATUTE LAW. Insert Neb. after Kan. in par. (b) (1) ; and strike out the reference to Neb. in par. (B) (2). § 3112. New Yokk, New Jersey. Tlie wife or husband being dead and there bein"- no issue, the personal property goes in equal shares to the mother, brothers and sisters, and their descendants, if deceased, per stiiycs. Insert N.Y., N.J.* before Md. in par. (A), and strike out the whole of par. (D). § 3113. No Issue, Widow or Husband, nor Father and Mother. NeW MEXICO. The usual provision is adopted that real estate descends to brothers and sisters and their issue, per stirpes. Strike out the whole of par. (b), and insert iV.J/.f before Ariz, in par. (A), and strike out the whole of note ^. Idaho. Strike out the note sign * to the reference to Idaho in par. (a) ; the half-blood distinction being repealed. Arizona. Change the note sign f in par. (a) to the note sign * ; the descent distinction having been done away with and the half-blood distinction having been adopted. § 3115. No Issue, nor Father or Mother. Idaho. In such case half the real estate goes to the husband or wife, the other half as if no husband or wife. In- sert Ida. before Uta. at the end. of the 1st par. New Mexico, Arizona. The Indiana law is followed, giving all to the widow or her husband. For Indiana in the last line read three states ; and insert Ind. ; N.M. 1887,32,24; Ariz, at the end of the line as citations. § 3116. Same Case: Personalty. New^ MexICO. The Indiana law is fol- lowed, giving all to the widow or her husband in such case. Add N.M. after Ind. in the 1st par. § 3117. No Issue, Husband or Widow, nor Brother and Sister. New MexICO. The Indiana law is followed, giving all to the father and mother. Add N.M. after Miss, in par. (c). § 3118. Same Case : Personalty. A reference should be made after par. (b) to § 3102 (A). § 3119. No Issue, Father or Mother, nor Brother and Sister, or their Issue. Alabama. All goes to the next of kin. Insert Ala.* before la. in par. (C). Idaho. It seems, in Idaho, tlie issue of brotliers and sisters are in such case cut off, and the husband or wife takes if there be no brother or sister living. New jNIexicg. Strike out the whole of par. (e) ; repealed. § 3120. Same Case: Personalty. New jNIexico. See § 3116. A reference should also be made from par. (a) to § 3102 (A). § 3121. No Issue, Father or Mother, Brother and Sister, or their Issue, nor Husband or Wife. PENNSYLVANIA. If the next of kin be one or more grand- parents, the descendants of deceased grandparents take with them the share of such deceased grandparent by right of representation, if of the blood of tlie an- cestor from whom such estate descended or was devised to the intestate : Pa. 1887,145. Alabama. The estate goes to the next of kin within any reference to those claiming through the nearest ancestor. Strike out Ala. in par. (A), and insert Ala.* before Miss, in par. (b). Arizona. The Texas law is followed. Strike out the reference to Arizona ia par. (A), and insert Ariz.\ after Tex. in par. (M). FIRST SUPPLEMENT: 1886, 1887. 47 New Mexico. The Indiana law is followed. Strike out the whole of par. (p), and insert iV.i/.f " 1887,32,5 after Ind. at the end of par. (h). Idaho. Strike out the note sign * ; see § 3113. § 3122. Same Case : Personalty. PENNSYLVANIA. Personalty goes like realty in the same case. See § 3121 above. § 3123. No Kindred. ARIZONA. Strike out the note sign ". New Mexico. Strike out the reference to New Mexico in par. (d), and the notes * and *". § 3125. No Kindred, nor Husband or Widow. New MEXICO. The estate escheats. Insert N.M. 1887,32,12 after La. in par. (a). § 3126. Personalty. IDAHO, New MEXICO. The estate escheats as in § 1166. § 3130. Tenure. ARIZONA. The estate descends in parcenary. Add Ariz. 1459 at the end of the 2d par. Alabama, New Mexico. The estate descends in common, except (in New Mexico) when it descends to parents of the intestate. Add ^/a. 1923; N.M. 1887,32,4 at the end of the 3d par., and N.M. at the end of the 4th par. § 3131. Law Governing. A reference should be made from this section to § 3140. § 3133. Half Blood. ARIZONA. The principle of par. (b) is adopted, that collaterals of the half blood inherit only half as much as those of the whole blood, etc. Insert Ariz. 1462 at the end of par. (B). New Mexico. The Indiana statute is followed, which abolishes the half-blood distinction as to estate first purchased by the intestate, etc. At the end of par. (E) strike out Ariz. 1467 ; and insert ayid New Mexico after Indiana in the 1st line of the succeeding par. § 3134. Descent and Purchase. ARIZONA. The Texas provision is followed specially abolishing the descent distinction. Add Ariz. 1461 after Tex. in par. (b) ; and for the word Texas in the 1st line of the par. read two states ; and strike out Ariz. 1467 in par. (A), and the whole of the last par. in this section ; and see § 3141 for reversions of gift estates. § 3131. Law Governing. WYOMING. The principal provision is adopted, that the real estate of a non-resident descends according to the law of the territory ; the personal estate, according to the law of his domicile. Add Wy. 2195 at the end of the 1st par. § 3135. Persons not in Esse. ARIZONA. No right of inheritance accrues to any person other than descendants of the intestate, unless born at the time of intestate's death. Add Ariz. 1464 after Fla. in par. (b), § 3136. Posthumous Children. New MEXICO. Posthumous children, only, of the intestate inherit as if living at his death. Insert N.M. 1887,32,1 after La. in par. (a). Arizona. So, in Arizona, of children or descendants of the intestate only. Strike out Ariz, in par. (C). § 3137. Per Stirpes ; Per Capita. Texas. Law unchanged ; add to the citation 1887,70. Arizona. The ceneral rule is followed that whenever heirs are in the same degree to the intestate, they take in equal shares ; but otherwise, per stirpes. Add Ariz. 1466 after Tex. in par. (A), in both places. 48 AMERICAN STATUTE LAW. § 3138. Representation. New MEXICO. The general provision is followed that the descendants of any person shall inherit per stirjjcs the estate that such person would have inherited had he survived the intestate. Insert NJI. 1887, 32,2 after Fla. in the 2d line of p. 406. § 3139. Next of Kin. AiiizoNA. The provision that next of kin shall he determined according to the civil law is omitted in tlie Eev. Stats. § 3141. [New Section.] Exceptional Cases. In Indiana and New Mexico, an estate which came to the intestate by gift or conveyance in consideration of love and affection, reverts to the donor if living at intestate's death, when the intestate dies witliout children or descendants, saving to the widow or widower his or her rights, provided that such widow or widower has a lien upon such property for the value at the intestate's death of all improvements made by him or her thereon, and for all moneys derived from the separate estate of such hus- band or wife expended in making such improvements : N.M. 1882,32,7 ; Ind. 2473. §3151. Inheritance by Bastards. MAINE. Law unchanged; add 1887,14 to the citation in par. (B). New Mexico. Add 1887,32,8 to the citation in par. (b). Bastards both in- herit from the mother and by representation from her kin. Add JVJL at the end of par. (c), after Fla. Arizona. So, in Arizona. Add Ariz, in par. (C), and omit it from par. (d). § 3152. Inheritance from the Father. (See also § 6632.) New MEXICO. The Indiana statute is followed, that estates descend to illegitimate children in default of other heirs, etc. Add a7id Hew Mexico after Indiana in the 1st line on p. 409; HJl 1887,32,9 after Ind. in the 4th line; and K3L after Ind. in the 6th line. Strike out the last par. but one of the section. § 3154. Inheritance from Bastards. (See also § 6632.) MAINE. Add 1887, 14 to the citation in par. (a). Nevada. It seems the estate of a bastard goes to the mother in preference to the widow or husband; but queer e : Nev. 2983. New Mexico. The mother of a bastard dying without issue, and, if she be dead, her descendants or kindred, inherits his estate: N.M. 1887,32,11. § 3162. Proof of Advancement. ARIZONA. The provisions of this section are omitted in the liev. Stats. § 3163. Advancement. General Law. NeW MEXICO. The usual provision as to advancements is adopted. Insert N.M. 1887,32,13 after Fla. in par. (a). Arizona. If the advancements are not equal to the share the person advanced would inherit, he must come into hotchpot if he would take any more of the estate. Strike out Ariz, in par. (b) (1), and Ariz. 1470 in par. (c), and insert Ariz, at the end of par. (B) (2). Alabama. The child need not come into hotchpot. Add Ala. after Ga. in par. (B). § 3164. Advancement to Ancestors. ARIZONA. The provisions of this sec- tion are omitted in the Picv. Stats. §3167. Value of New MEXICO. Advancements are estimated at their value at the time of advancement. Insert N.M. 1887,32,14 after i^/a. 92,6 in the 3d par. Arizona. The provisions of this section are omitted in the Eev. Stats. FIRST SUPPLEMENT : 1886, 1887. 49 § 3168. Advancements to Other Heirs. Co^:necticut. Advancements may be made as well to other descendants as to the children. Insert Ct. 630 after Fi^. § 3202. Amount of Dower. CONNECTICUT. Dower is absolutely abolished as to marriages made since April 20, 1877. Insert Ct. 623 before Incl. in par, (B). And the husband and wife may, during marriage, mutually abandon all rights in each other's property at common law, or under the statutes in force at the time of their marriage and until April 20, 1877, and accept instead the provisions in force now, by written contract recorded in the probate court and in the town- clerk's office where they reside : Ct. 618,624. So, also, the provisions of §§ 3105-6, 3109,3110, with regard to the statutory share of the husband and wife in the property of the other, do not apply to any case where, by written contract made before or after marriage, either party has received from the other what was in- tended as a provision in lieu of such share : Ct. 623. See also § 6358. Ohio. Both the husband and wife are endowed as at common law. Insert 0. 1887, 2J. 135 after Me. in par. (d), and change the word two in the 1st Hue of the par. to three. New Mexico. Dower is absolutely abolished. Insert KM. 1887,32,16 after Miss, in par. (B). Terpjtokies. " A widow shall be endowed of a third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, unless she shall have lawfully released her right thereto : " U.S. 1887,397,18. § 3204. Inchoate Dower. New MEXICO. The Indiana statute is followed as in all cases of descent and dower. Add KM. 1887,32,42 after Ind. 2508 ; and KM. ib. 43 after Ind. 2509. § 3212. Dower in Equitable Estates. NeW MEXICO. The Indiana statute is followed as before. Add KM.^ 1887,32,25 after the 1st par.; KM.^ ib. 27 after Mo. in the 5th par., and K.M.^ ib. 28 after Ind. in the 6th par. § 3213. Dower in Land Mortgaged after Marriage. jSTew MEXICO. If land was purchased by the husband during marriage and mortgaged to secure pur- chase-money, the mortgage is good against dower whether she joined in the mortgage or not. Add K.M. 1887,32,29 after Ga. in par. (B). Territories. A late U.S. statute adopts the principal provision. Add U.S. 1887,397,13 {Territories) at the same place, § 3214. Dower in Lands Mortgaged before Marriage. TERRITORIES. A late U.S. statute adopts the principal provision. Add U.S. 1887,397,13 {Territories) at the end of the 2d par. § 3215. Dower in the Estate of a Mortgagee. TERRITORIES. A late U.S. statute adopts the principal provision. Add U.S. 1887,397,13 {Territories) at the end of the 1st sentence. § 3216. Dower in Surplus Proceeds, TERRITORIES. A late U.S. statute adopts the principal provision. Add U.S. 1887,397,13 {Territories) at the end of the 1st sentence. § 3218. Dower in Lands Exchanged. TERRITORIES. A late U.S. statute adopts the principal provision. Add ^.aS'. 1887,397,13 {Territories) at the end of the 1st par. 4 50 AMERICAN STATUTE LAW. • S 3231. Waste by Dowress. OHIO. If a dowress commits or suffers waste she is liable like tenants for life. Insert 0. 4194; 1887, ^?. 135 after N.J. Waste 3 in par. (a). Strike out the whole 2d par., and insert 0. 4111 \ 1887, _p. 134 before N.J. in the 3d par. § 3241. By Jointure. Oiiio. Either husband or wife may be barred from dower by jointure as in this section provided. Change the citation in the 1st par. to 0.' 4189 ; 1887, p. 135 ; insert 0." after N.Y. in par. (A), and add the note si. 135 to the citation. New Mexico. So, as to the wife, in New Mexico. Add N3I.^ 1887,32,30 after S.C. at the end of the 1st par. Territories, A late U.S. statute adopts the principal provision. Add U.S. 1887,379,13 (Territories) at the end of par. (C) (1). § 3248. Failure of Jointure. Ohio. The provisions of this section are ex- tended to the case of husbands. Append the note sign " to both the references to Ohio, and add to the section Note " Or widoicer ; see § 3302. New jSIexico. The principal provision is adopted, that the widow may claim dower when evicted from her jointure estate. Add N.M. 1887,32,40 at the end of the 1st par. § 3249. By Act of Husband. New MEXICO. The Indiana statute is followed, providing that no act of the husband shall prejudice the wife's riglit of dower. Insert N.M. 1887,32,33 after Ark. in the last line on p. 427 ; and change the word four in the 4th line of the section to five ; and add N.M. after Ark. in the 3d line of p. 428. FIRST SUPPLEMENT : 18S6, 1887. 51 Ohio. So, if he or the wife give up any real estate by collusion or fraud, or lose it by default, the other still has dower: 0. 1887, p. 135. § 3261. Separate Property. WYOMING. Insert IFlJ. 2233 after Col. § 3262. Waiver of Will. New MEXICO. A widow may waive the will and take her intestate share in both real and personal property. Add AL3f. 1887,32, 39 at the end of par. (a). § 3265. Method of Waiver. ISTew MEXICO. The widow must elect dower or take the ^^■ill within one year of her husband's death. Insert NJI. 1887,32, 38 after Ore. at the end of par. (1). Maine. Or within thirty days after the decision of a bill, brought by her to determine her rights, to the Supreme Court : Me. 1887,88. Alabama. The waiver must be filed eighteen mouths after probate. Insert Ala.^ 19G4 after clause (1), and strike out Ala} 2293 in clause (3). § 3271. By the Heir. MISSOURI. The widow must sue for dower within one year or be forever barred. Insert Mo.'^ 1887, p. 177 after JV.Y. in the 3d par. § 3276. Division by Bounds or Otherwise. CONNECTICUT. Dower is assigned by metes and bounds. Insert Ct. 619 after RL in the 1st par. § 3301. Amount. MASSACHUSETTS. Add to the citation in par. (a) 1885, 255 ; 1887,290. The husband has the right to the use of one half of the wife's real estate for life if they have had no issue born alive; or to all her real estate, not exceeding $5,000, where no issue survive her. Connecticut. The principal provision applies only to marriages made before April 21, 1877. As to others, see §§ 3105,3109. Alabama. Strike out the words and Alabama in par. (a). Ohio. Both husband and wife take the same estate in the lands of each other. Insert 0. 1887, p. 135 before III. in par. (f). Curtesy is abolished. Add a 1887, ^j. 136 after Me. in par. (G). New Mexico. So, in New Mexico. Insert KM. 1887,32,16 after Miss, in par. (g). Arizona. The statutes relating to curtesy proper are repealed. Strike out Ariz. 1474 in par. (a). § 3302. Extent. Oiiio. Strike out the reference to Ohio throughout par. (b), there being no curtesy. Nebraska. Substitute Neb. for 0. at the end of the section. § 3303. Election. A reference should be made from this section to § 3202 § 3304. Bar. CONNECTICUT. Every devise to the husband is held to be in lieu of curtesy unless tlie contrary appear. Insert Ct. 623 after N.H. at the end of the 3d jiar. New Mexico. The Indiana statute is followed, that a husband may be bound by curtesy by ante-nuptial settlement, etc. Add iV.i/." 1887,32,35 at the end of the 2d par. § 3306. Waiver of Curtesy. A reference should be made from this section to § 3202 (E). § 3307. Forfeiture, etc. New Mexico. The Indiana statute is followed throughout. Add N.M." 1887,32,31 at the end of the 3d par., and KM. 1887, 32,32 at the end of the 5th par. 52 AMERICAN STATUTE LAW. § 3308. "Waste. CONNECTICUT. A tenant by curtesy is liable for waste like a dowress : Ct. 624 Ohio. Strike out the citation 0. 4177, and the whole of the 2d par, ; tenancy by curtesy being abolished. § 3309. Eviction. New MEXICO. The Indiana statute is followed, that a man evicted from his jointure is entitled to curtesy, etc. Add N.M. 1887,32,40 at the end of the section, and for Incl. read two states. § 3401. On the Death of the Wife. IDAHO. The California code concerning community property is followed. Add Ida,, at the end of par. (a) (1), and strike out the citation and reference to Idaho at the end of p. 437. New Mexico. Strike out the whole of par. (C) ; repealed by the new descent law. § 3402. Upon the Death of the Husband. NeW Mexico. Strike out the whole of par. (c). § 3403. In all Cases. Tex.\s. Insert after the 1st par. : But such descend- ants shall inherit only such portion as the parent through whom they inherit would he entitled to if alive : Tex. 1887,96. Idaho. The California law is followed, that if the decedent is a widow or widower and leaves no kindred, it goes to the father, mother, brothers, or sisters of the deceased spouse of the intestate : Ida. 5702. § 3404. New Mexico. This entire section is undoubtedly repealed by the new Descent Law : N.M. 1887,32. § 3405. The Jointure Estate. NeW Mexico. All the provisions of this sec- tion concerning the descent, etc., of the jointure estate are adopted, following the statute of Indiana : N.M. 1887,32,44. § 4011. Law of Personal Property. IDAHO. The California code is followed, that personal property is governed by the owner's domicile. Add Ida. 2890 to the citations. § 4030. Choses in Action. IDAHO. Upon the death of the owner a chose in action passes to the personal representatives, as in California. Add Ida. 2891 to the 2d par. § 4031. Assignment of Choses in Action. Idaho. Under the Rev, Stats. all Glioses in action arising upon contract may be assigned so as to vest the title in the assignee, and the California code is also followed, that a non-negotiable written contract may be transferred by indorsement, in like manner with negoti- able instruments. Insert Ida. 2891 after Dale, in the 1st par. ; strike out the Idaho reference and citation throughout the 2d and 3d pars. ; and add Ida. 3600 after Dak. at the end of the 4th par. Arizona. Under the Eev. Stats, all instruments and writings not negotiable may be assigned so as to vest the title in the assignee. Change the citation in the 1st line of p. 441 to Ariz. 122, and strike out the Arizona citation and references in the 1st and 2d pars., and in the last line on p. 440. § 4032. Suits by Assignee. WYOMING. The provisions of this section seem to be omitted in the liev. Stats. Strike out Wy. Civ. C. 23 in the 1st line of p. 442. § 4036. Suits against Assignors. ARIZONA. The provision that the assignee of a non-negotiable instrument may sue the assignor without pursuing the FIRST SLTPLEMEXT : 1886, 1887. 53 obligor when the latter is insolvent, etc., is omitted in the Rev. Stats. The pro- visions of the Texas statutes, that parol testimony is inadmissible to prove a re- lease, and tliat the assignee of a non-negotiable instrument must sue a remote assignor only after the subsec]^uent assignors, etc., is adopted. Strike out Ariz. in clause (2) of the 1st par. ; and add Ariz. 124: at the end of the 2d par., and Ariz. 125 at the end of the 3d par. § 4037. " Due Diligence." ARIZONA. Strike out the reference, the provision detining " due diligence " being omitted in the Rev. Stats. For compare § 4734, read § 4741. § 4033. Fraud. IDAHO. The provision of this section seems to be omitted in the Rev. Stats. § 4040. Ferae Naturae. WISCONSIN". By a new statute, birds ordinarily kept in confinement, and beasts or dugs of any value, may be the subjects of larceny : Wis. 1887,523. § 4100. Contract. Idaiio. The Rcv. Stats. follow the California code, that all contracts may be oral except such as are specially rer|uired by statute to be in writing : Ida. 3224. § 4104. Conditions. IDAHO. Every stipulation or condition in a contract by which any party thereto is restricted from enforcing his rights under the contract by the usual proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void : Ida. 3229, § 4110. "Who may Contract. IDAHO. The provision of the California code is followed, that all persons may contract except infants, insane persons, and persons deprived of civil rights : Ida. 3220. § 4113. Joint Contracts. TEXAS. The usual provision is adopted, that in case of one or more joint obligors the contract survives against his representa- tives as well as against the survivors. Insert Tex. 1887,26 after 3fo. in the 3d par. § 4117. Volunteers. IDAHO, The California code is followed, that a contract made expressly for the benefit of a third person may be enforced by him at any time before the parties rescind it : Ida. 3221. § 4121. Consideration Presumed. IDAHO, ARIZONA. Seals being abolished, the provision is adopted that all written contracts import a consideration 2Jrima facie. Add Ida. 3222 after Dale, and Ariz. 2784 after Fla. in the 2d par. In Idaho the burden of showing a want of consideration is on the party seeking to avoid the contract : Ida. 3223. § 4123. Want of Consideration. IDAHO. The provision of the 1st par. seems to be omitted in the Rev. Stats. For § 4739 in the 4th line read § 4744. § 4132. Gaming Contracts. CONNECTICUT. Money paid under gaming con- tracts may be recovered by any person at any time after the event, and treble the value of the money lost is recovered in such suit. Insert Ct. 2554 after Me. in the 1st and 2d pars, of (B) ; and strike out the reference to Connecticut in note '*. § 4134. Holidays. NeW YoRK, IdAHO, ARIZONA, MASSACHUSETTS, KANSAS, Wyoming, Colorado, New Jersey, Oregon, have made changes in the law of legal holidays. In detail : January 1 has been made a legal holiday for all purposes in Arizona ; February 22, in Massachusetts (it having previously been a holiday, it seems, only for the purposes of negotiable paper), and in Idaho and 54 AMERICAN STATUTE LAW. Arizona; Arbor Day, being the last Monday in April, in Idaho (and for other states see also § 2104) ; April 21, in Arizona; May 30, in Massachusetts, Kansas, and Wyoming and Arizona; July 4, in Massachusetts and Arizona; "Labor Day," being the first Monday in September, in Massachusetts, Colorado, New Jersey, and New York, and so in Oregon, Labor Day is the first Saturday in June ; any day is appointed by the governor for Thanksgiving, in Massachusetts and Arizona ; or for Fast, in Massachusetts and Arizona ; or any day set apart by the Governor or President for any public observance in New Jersey, Idaho, or Massachusetts ; December 25, in Massachusetts and Arizona ; and all general election days in Arizona; and Saturdays are half-holidays for all purposes, after twelve o'clock, in New York: N.Y. 1887,289 ; Ida. 1299 ; Wy. 1430 ; Ariz. 2068 ; Mass. 1887,263; Ida. 1299; Kan. 1886,125; Col. 1887, p. 327; N.J. 1887,114; 1886,200 ; Ore. 1887, p. 86. And in Arizona when any legal holiday falls on Sunday the following day is a holiday. § 4135. Contracts Executed on Sunday. New JERSEY. No person shall be compelled to labor on legal holidays : N.J. 1886,260. New York. The saving provision as to Jews appears to be repealed : 1886, 593. § 4140. Clause 4 of the Statute Adopted. LOUISIANA. A new statute of frauds has been enacted: La. 2278,1887,121. In detail, strike out Louisiana in the 1st par. of the section. Insert Louisiana after Utah in the 2d par., the words and Louisiana after (m all except Pennsylvania) in par. (2), the words and Louisiana after North Carolina in par. (3), the words and Louisiana after Montana in par. (4), and the words and Louisiana after North Carolina in par. (5). Nevada. In the new Gen. Stats, the clause as to special jjromises by execu- tors or administrators is omitted. Arizona. But in Arizona, by the Kev. Stats., this clause is adopted ; and the exception in clause (3), of mutual promises to marry, omitted ; and clause (4), as to contracts concerning lands, adopted, for interest for a longer term than one year. Strike out Ariz, in clauses (1), (3), (4), and (5) ; and insert Ariz, after Fla. in note ^ Idaho. Clause (4), concerning contracts for real estate, is omitted in the new Rev. Stats. Insert Ida. after Wash, in the last line of the clause. Missouri. The agent must have written authority when the contract relates to real estate, as in clause (4). Insert Mo. 1887, p. 195 after Minn, in the last line of the section. § 4142. The Memorandum. ARIZONA. The provision concerning auctioneers' memoranda appears to be omitted in the Eev. Stats. Strike out Ariz. 2127 in the last line. § 4143. Clause 1 Adopted. IDAHO. Contracts for leasing for a longer period than one year, or for the sale of any interest in land, must be in writing and subscribed by the party or his agent having written authority. Insert Ida. 6009 after Col. in par. (B). Minnesota. The agent's authority must be both written and recorded : Minn. 1887,26. FIRST SUPPLEMENT : 1886, 1887. 55 § 4144. Clause 16, in ARIZONA, appears to be omitted from the Rev. Stats, § 4145. Performance. ARIZONA. The usual provision concerning specific per- formance appears to be omitted from the Eev. Stats. Strike out Ariz. 2123. § 4148. Other Contracts Required to be in Writing. A reference should be made from this section to § 4533. § 4149. Fraud. Idaho. The California provision concerning fraud is adopted, that a person who is prevented by the fraud of the other party from putting the contract in writing may nevertheless enforce it : Ida. 3225. § 4175. Tender. The law of tender before and after suit will be more fully treated of in the second volume in Part IV. Idaho. The other person must make any objection to the article tendered at the time, or he will be deemed to have waived it. Add Ida. 3231 after I)ak at the end of the section. Idaho, Arizona. Strike out the references and citations in the last line of p. 471 ; repealed. § 4177. Effect of Tender. Idaho, ARIZONA. All the provi-sions of this sec- tion seem to be omitted in the Rev. Stats. § 4192. Fraud. ARIZONA. The provisions in the 2d and 3d lines of this section are omitted in the Rev. Stats. § 4204. The Construction. IDAHO. The California provision is followed, that when a contract is partly written and partly printed, the former holds, etc. Add Ida. 3223 after Dak. in the 6th par., and Ida. after Dak. in the last line of the page. § 4338. Loans Pass Title as against Creditors. ALABAMA. The loan passes title when possession shall have remained three years, etc. Insert Alabama be- fore llississipj^i in the 4th line. Arizona. The princiJDal provision is adopted, that when a loan of personalty is pretended to have been made to any person with whom possession shall have remained two years without demand made and pursued at law by the lender, or when any reservation or limitation is pretended to have been made of a use or property by way of a condition, reversion, remainder, or otherwise, in goods or chattels, and the possession shall have remained with another as aforesaid, the absolute property shall be taken to be with the possession ; and such loan, reservation, or limitation is void as to creditors of or purchasers from the person remaining in such possession, unless declared by deed, will, or other writing duly recorded : Ariz. 203G. § 4343. Bill of Lading. WASHINGTON. All the provisions of the California code concerning bills of lading in this section are adopted, both as to bills of lad- ing and warehouse receipts : Wash. 1886, p. 121. § 4352. The Time of Liability. ALABAMA. If a carrier at the point of desti- nation give notice to the consignee and the goods are not taken by him, he is thereafter liable only as a warehouseman : Ala. 1180. § 4354. Sale of Goods. IDAHO, WYOMING. Provision has been made for the sale of unclaimed goods, etc., by railroads, carriers, etc., as in other states. The subject does not appear to be of sufficient importance to justify its being stated at length. In detail, insert Ida. 1160 ; Wi/. 1472-4 after Dak. in par. (1), Ida. 1163 ; Wy. 56 AMERICAX STATUTE LAW. after Wasliington in par. (2), Ida. after Dah. in par. (3), Wy. after Ala. in par. (4) ; and add (10) Artisans; see § 4641 : Wy. at the end of p. 514. Missouri, Massachusetts. The provisions of the section are extended in Missouri to innkeepers, and in Massachusetts to warehousemen. Insert Mo. 1887, 2'>- 212 after Neb. in clause (3), and Mass. 1887,277,1 before Vt. in clause (4). § 4355. Time of Sale. MASSACHUSETTS, IdAHO, MISSOURI, ALABAMA, ARI- ZONA. Changes should be noted in this section as follows: insert Ida. 1161 after KJ. in clause (a) (4) ; Mo." 1887, p. 212 after Tenn. below in the same clause ; Ala. 1182 after Cal. below in the same clause ; and Wy. 1472 after Wash. There must be notice of a sale by publication ; insert Ida. ; Wy. 1474 ; Ala. in clause (1) of the 3d par. below ; and special notice to the owner or consignor, if known; insert Mass.^ before Vt., and Ida., Wy. before Ala. in the last par. but one of (a), and Ala. before Ariz, in the last par. So, when the owner is unknown or cannot be found. Insert Ida. after Nev. in clause (B) (2) ; append the note sign '^ before Mo. in clause (B) (3) ; insert Ariz. 324 after S.C. in clause (b) (5), and Ala. 1182 after Cal. in clause (B) (6) ; insert Ida. after Dak. in clause (1) of the last par. of (B). Perishable goods may be sold immediately in Alabama. Insert Ala. 1181 after Ga. in clause (C) (2), and Ala. after Ga, in the last par. but one on the page, and in the 1st and 2d lines on p. 516. Strike out Ariz. 3661 and Ariz."^ 3664. §4356. Effect. MISSOURI. Add the citation 1887,^.212 to the Missouri citation in the 1st par. ; and append the note sign "^ to Mo. in the last par. Idaho. The proceeds of the sale are to be applied first to the necessary ex- penses and the remainder paid to the county treasurer, from whom the owner may claim it at any time. Insert Ida. 1161 after Dah. in tlie 1st par., Ida, 1162 after Wash, in the 2d par., and Ida. after Dak. in the 4th par. Arizona. The owner may claim at any time within sixty days after the sale. Strike out Ariz, (six months) in the 2d par., and insert Ariz, after Cal. in the 2d line of the 4th par. Massachusetts. The owner may claim any time within six months after the sale. Insert Mass.^ 1887,277,3 before B.I. in the last par. § 4359. Bills of Lading. New York. The provision of this section, that no master or agent of a vessel or common carrier shall give any bill of lading or receipt for merchandise unless actually shipped, and that no property can be delivered except on surrender and cancellation of such bill of lading, appears to be repealed : N.Y. 1886,593. Strike out iV. Y. 1858,326,5 in the 2d line on p. 517 ; N.Y. 1859, 353 in the 5th line, and also in the 7th line. Arkansas. But in Arkansas all the provisions of this section have been adopted. Insert Ark 1887,60,5 after Mo. in the 2d line on p. 517, Ark. ih. 9 after 3Io. in the 7th line, Ark ih. 6 after Mo. in the 9th line, Ark. after Mo. in the 10th line, Ark. ih. 7 after Mo. in the last par. but one, and Ark. in the last line of the par. Mississippi. Every bill of lading or instrument in the nature thereof, acknowl- edging the receipt of cotton or other things, is conclusive evidence, in the hands of a ho7ia fide holder, as against the person issuing tbc same, that the goods have actually been received for transportation : Miss. 1886,37. FIRST SUPPLEMENT: 1880, 1887. 57 § 4370. "Warehousemen, Definitions, Titles. DAKOTA. A public warehouse- mau is one who advertises or offers to receive the merchandise of any parties on storage for hire; he may store grain in bulk or mix it. Add Dah. 1887,130,4 at the end of the 2d par., and Dak. ib. 9 at the end of the 5th par. § 4371. Receipts to be Genuine. New 'YoRK. All the provisions of this section are repealed: N.Y. 1886,593. Strike OMi New York in the 2d, 3d, and 4th lines of the section, N.Y. 1858,326,1 in the 2d line on p. 51vS, and the Xew York references and citations in all the following pars. Arkansas. The provisions of this section liave generally been adopted in Arkansas. Insert Arkansas after Ifissoiiri in the 2d and 5th lines of the sec- tion, Ark. 1887,60,1 after 3Io. in the 5t]i line on p. 518, Ark. ib. 2 after IIo. in the following par., Ark. ib. 3 after Mo. 556 in the next following par., Ark. after Ivan, in the next par., and A7^k. ib. 4 after IIo. 556 in the following par. Virginia. So, in Virginia, the principal provisions have been adopted, that no warehouseman shall issue any receipt except for goods actually received, nor any second receipt while the first is outstanding uncancelled, and he cannot sell or remove such goods without the written consent of the person having the receipt. Insert Va. 1886,421,2 after 3fd. in the 1st par. on p. 518, Va. ib. 3 after Ore. in the 3d par., Va. after Kan. in the next par., and Va. ib. 4 after I{an. 23,148 in the next par. Iowa. No warehouseman can issue a receipt as security for any loan unless the goods are in his custody. Insert lo. 1886,165,4 after l7id. 6545 in the 2d par. on p. 518, and add the citation 1886,165,5 after lo. 2175 below. Alabama. Append the note sign " to the citation to Alabama in the 3d and 5th pars, on p. 518 ; and add to the section Note " A2Jplicd also to carriers' bills of lading. A warehouseman or carrier is liable in damages for non-compliance with tlie provisions of this section: Ala. 1179. Dakota. A warehouseman may not issue any second receipt while the first is outstanding, except as a duplicate; and every warehouseman must give a receipt setting forth the quantity, kind, and grade of grain stored, wliich is conclusive against the warehouseman. Insert Dak. 1887,130,16 after Ore. in the 3d par. on p. 518, and Dak. ib. 8 after Ore. in the last par. of division (a). Mississippi. A warehouseman's receipt or instrument in the nature thereof is conclusive evidence in the hands of any bona fide holder, as against the person issuing it, that the cotton or other goods mentioned therein have actually been received for storage: Miss. 1886,37. § 4372. Warehouse Receipts. New York. All the provisions of this section are repealed as in § 4371 above. Iowa, Virginia, Arkansas, Dakota, Washington. In these states the main provision, that warehousemen's receipts may be transferred by indorsement, is adopted. Insert lo.'' 1886,165,2 after Wis., Va.' 1886,421,1 after Neb., Ark. 1887,60,6-7; Dak. 1887,130,9; Wash. 1886, p. 121 after Cal. in the 1st par., and insert Ark. ;* Wash, among the citations in the 1st par. on p. 519. In Wash- ington, warehouse receipts may be drawn to "bearer," and pass by a simple transfer ; see § 4343. Insert Va.' after JVis., and Ark. after Mo. in the 2d line of the 4th par. on p. 519 ; and Va. after Md., and Ark. after Mo. in the 5th par. 58 AMERICAN STATUTE LAW. Append to the section Note, " But only when the word negotiable is written or stamped on the face of the receipt hy the person or corporation issuing it. Massachusetts. Warehouse receipts are exempt from the provisions if the words "non-negotiable," etc., be written below. Add Mass. 1886,258 at the be- ginning of the citations in the 5th par. Alabama. The provisions of this section do not impair landlords' or recorded liens. § 4373. Delivery. ' VIRGINIA, ARKANSAS, DAKOTA, ALABAMA. The provisions are adopted that no person having issued a receipt may part with the goods ex- cept to the holder of the receipt, and he is required thereupon to destroy it, etc. Add Va. ih. 4 ; Ark. ih. 1 ; Dak. ih. 9, and Ala. 1178 to the citations in the 1st par. Insert Va. among the citations in the 2d par.; and add Va. ; Ark. ih. 7 & 10, and Dc(k. ih. 16 to the citations to the 3d par., and Ark. to the citations to the last par. New York. The provisions of this section are repealed. See § 4371 above. § 4375. Warehouseman's Lien. NeW JERSEY, VIRGINIA. In tliese States warehousemen's liens have been provided by statute. Add N.J. 1886,130 ; Va. ib. 4 to the citations in the 1st par. For Art. 447 in the 2d line read Art. 464. § 4376. storage a Bailment. VIRGINIA. The Minnesota statute has been followed, that storage of grain is deemed a bailment, not a sale. Add Va. ih. 5 after Minn, in both places in the 1st par. § 4393. Lien. ARIZONA. Hotel and boarding-house keepers are given a lien on the baggage of their guests, etc. Add Ariz. 2289 at the end of the 2d par. ; and Ariz, after N.M. at the end of the 4th par. § 4501. Delivery. ARIZONA. No gift except by deed or will is valid unless actual possession have come to the donee. Add Ariz. 2033 to tlie citations in the 1st par. § 4503. Gifts by Insolvents. ARIZONA. The provisions of the Texas statute as to gifts by insolvents being void as to creditors, etc., have been followed throughout. Add Ariz. 2032 at the end of p. 525 ; and Ariz, after Miss, in the 2d par. on p. 526, and after Tex. in the last par. but one of the section. § 4504. Gifts by Minors. ALABAMA. All conveyances of personalty in favor of minor children except by will, where the custody and control remain witli the parents, vest an absolute estate in such parents in favor of purchasers and creditors, unless recorded within three years in the county where such parents reside : Ala. 1819. § 4508. Record. ALABAMA. Strike out Ala. 2170 in the 1st par. § 4520. Pledges : Definitions. IDAHO. The provisions of the California code are followed. Add Ida. 3410 to the citations in the 2d par., and Ida. 3411 to tliose in the 3d par. § 4521. General Principles. Idaho. So, the California Code has been fol- lowed throughout nearly all the provisions of this section. Insert Ida. 3412 at the end of the 1st par., Ida. 3413 at the end of the 2d, Ida. 3414 at the end of the 3d, and Ida. 3415 for the 4th and 5th, So, Ida. 3416 contains the provisions of the 6th, 7th, and 8th pars. Tlie 9th par., that pledgees assume the duties and liabilities of depositaries for reward, and the 1st par. on p. 521, that a gratuitous pledge-holder is like a gratuitous depositary, do not appear to have been followed FIRST SUPPLEMENT : 1886, 1887. 59 in Idaho. But otherwise all the provisions of this section contained in the Cali- fornia code have been adopted. Insert Ida. 3417-3429 after Bah. Civ. C. 1760- 1782 in the last par. but one of the section. Alabama. Two days' notice of the sale of the pledge is required, in writing, personal or by mail: Ala. 1785. § 4522. Rights of Pledgee. ALABAMA. Collateral securities taken or property pledged to secure the payment of a debt, must not, without a transfer of the debt, be transferred or assigned except as herein provided : Ala. 1784. A transfer of the debt passes to the transferee the right of the transferor in the property pledged. A transfer of the property without a transfer of the debt is a discharge of the pledge, and restores title to the person from whom it was received : Ala. § 4523. Duties of Pledgee. ALABAMA. All banking, insurance, and other corporations, private bankers, brokers, and other persons engaged in the business of loaning money, etc., must, if demanded, give the borrower a receipt describing the collateral, debt, amount, maturity, etc., numbers of negotiable bonds, if given, etc., or no title will pass : Ala. 1783. § 4530. Record of Chattel Mortgages. Idaho. Change the citation in the 1st par. to Ida.'^ 3386-7. It is not valid "as against creditors or purchasers," if not recorded. Wyoming, Arizona. The provisions of this article extend to all bills of sale, deeds of trust, and other conveyances of personal property which have the effect of a mortgage or lien thereon. Add Wy. 71 ; Ariz. 2365 to the citations in note *. Arizona. Strike out the references and citations in the 3d par., the Arizona statutes having ceased to consider the case of ships. § 4531. Time of Record. ARIZONA. Chattel mortgages must be recorded forthwith. Add Ariz, to clause (4), and strike out Ariz, {thirty miles) 3650 in clause (5). Wyoming. The mortgage takes effect only from the time of record except as between the parties. Add Wy. 74 to the citations to clause (6). § 4532. The Place of Record. Ohio. Law unchanged ; add to the citation 1888,^. 72. Nevada, Alabama. Chattel mortgages are recorded in the Eegistry of Deeds of the county where the property is, and in the county where the mortgagor re- sides also. Insert Nevada after California, and Alabama after Idaho in the 5th line. In Alabama, if the goods mortgaged be subsequently removed to another county, the mortgage must be also recorded in that county within six months. Add (7) within six months: Ala. after the 5th par. ' Wyoming. Cattle mortgages may be recorded in the county where the range is situated : Wy. 72. Arizona. If the goods mortgaged be removed to another county, the mort- gage must be recorded therein within thirty days after removal. Add Ariz. 2372 after Wash, in the 3d line of the 5th par. § 4533. Form, Acknowledgment, and Signature. IDAHO. Chattel mort- gages must be acknowledged or proved like deeds of real estate. Insert Ida. after Cal. in the 5t]i line. 60 AMERICAN STATUTE LAW. Alabama. Chattel mortgages must be in writing and subscribed by the mort- gagor: Ala. 1731. Nevada. No chattel mortgage is valid if for a less sum than $100 : Nev. 1887,57. § 4534. Affidavit. ARIZONA. Change the citation to 2364, and strike out note ", with the note sign. § 4535. Duration. ILLINOIS. Add to the citation 1887, p. 241. Colorado. A chattel mortgage remains valid five years, if the principal amount due exceed $2,500; ten years if it exceed $20,000 : Col. 1887, p. 75. If it exceed $2,500, there must annually be recorded an affidavit of the mortgagees, or one of them, that it was given in good faith to secure the payment of the sum mentioned ; that it is still unpaid, or that a specified portion is unpaid. § 4537. Method of Foreclosure. Idaho. It seems that chattel mortgages may no longer be foreclosed like mortgages of real property. Strike out the cita- tion and reference in par. (C). § 4538. Sale. WYOMING. Notice of the sale may be given by posting when there is no newspaper. Add Wyf^ after Dah. in clause (4). Idaho. The time of notice is as in execution sales. Insert Ida. after Wash. in clause (6). § 4539. Manner of Sale. Idaho. The sale is made as in sales under execu- tion. Insert Ida. 3393 after Wash, in clause (2). Michigan. Law unchanged ; add the citation 1887,178. § 4540. Redemption. Idaho, ARIZONA. The provision authorizing redemp- tion by the mortgagor is omitted in the Eev. Stats. § 4541. Discharge. ARIZONA. The provisions of the section are followed throughout, that a chattel mortgage may be discharged by certificate or entry on the record like mortgages of realty. Insert Ariz. 2368 after Tex. in clause (1), Ariz, at the end of clause (2), and Ariz. 2360 after Md. in clause (3). Nevada. They are released in the same way as mortgages of realty. Insert Nev. 1887,57 after Md. in clause (3). § 4542. What may be Mortgaged. A reference should be made from this section to § 1853. Colorado. Cattle or herds may be mortgaged with their increase. Add Col. 1887, p. 76 to the citations to clause (8). California. Strike out the whole of clause (10) ; repealed. Add to clause (12), in the 2d par., also the wines, etc., themselves ; and add clause (13) 'pianos and organs : Cal. 1887,8. Pennsylvania. Insert clause (15) Iron ore mined and prepared for use, pig- iron, rolled or hammered iron, blooms, bars, or sheets, nails, plates, castings, etc. ; but not for less than $500 : Pa. 1887,32. There are further special provisions applying to the record, duration, etc., of such mortgages. Arizona. All the provisions of this section are omitted in the Eev. Stats. § 4543. Sale by Mortgagor. New JERSEY. The mortgagor is forbidden to conceal or carry away the mortgaged property. Add N.J. after Ct. in the 2d line, and 1887,83 to the New Jersey citation. Michigan. All the provisions of this section appear to be repealed by the statute of 1887,154. FIKST SUPPLEMENT : 188G, 1887. 61 CoLOKADO. Strike out the note sign '^ to the reference in the 3d, 5th, and Gth lines ; and substitute the note sign "^ for '^ to the reference in the 12th line ; such sale, etc., ])eing made larceny : Col. 1887, p. 76. Arizona. Under the liev. Stats, the mortgagor is forbidden to remove or otherwise dispose of the mortgaged property : Ariz. 2370. Strike out Ariz, in the 3d line ; and insert Ariz, after KM. in the 5th line, and after Ga. in the 7th line, changing the citation as above. California. The mortgagor is forbidden to remove the mortgaged property under penalty of a misdemeanor. Add Cal. after Ark. in the 4th line, and in- sert Cal.'' 1887,77 after Tex. in the citation below. Virginia. It is made larceny for the mortgagor to dispose of the mortgaged property. Insert Va. after Md. in the 6th line, and Va.'^ 1887,396 after Del. in the citations below. Virginia, California. But the provisions of this section may be waived by the written consent of the mortgagee. Add Va., Cal. to the citations in the 2d par. § 4546. Special Cases of Chattel Mortgages by Tenants. ISTevada. The lien of a mortgage on a growing crop continues after the crop is harvested and pre- pared for market, and delivered to the mortgagee or his order : Nev. 1887,57. § 4553. Record. ALABAMA. Conditional sales must be recorded like chattel mortgages. Add Ala. 1815 at the end of the citations in clause (A) (1). New York. The exception of household goods, pianos, etc., is extended to engines and machines : N.Y. 1886,495. § 4566. Rights and Duties of the Seller. IDAHO. Many of the provisions of this section are copied, following the California code. Thus, after personal prop- erty has been sold, the seller has the rights and obligations of a depositary for hire until delivery is completed. One who sells personal property must brina it to his own door ; but further transportation is at the buyer's risk. Personal property sold is delivered at the place where it is at the time of the' sale, or at the place where it is produced ; and w^hen either party at the sale has an option as to the manner of delivery, he must give notice of his choice or be deemed to have waived it. Add Ida. 3252 after the 1st par., Ida. 3251 at the end of the 1st sentence on p. 544, Ida. 3250 at the end of the next par., and Ida. 3249 at the end of the next succeeding par. § 4569. "Warranty. IDAHO, PENNSYLVANIA. One who sells or agrees to Sell goods by sample thereby warrants the bulk to be equal to the sample. Add Pa. 1887,17 ; Ida. 3246 after the 8th par. Idaho. One who sells or agrees to sell personal property as his own thereby warrants that he has a good and unincumbered title thereto. Add Ida. 3245 after the 7th par. One who sells or agrees to sell any article to which there is affixed a mark to express the quantity thereof, or the place where it was manu- factured, thereby warrants the truth thereof. Add Ida. 3247 after the 2d par. on p. 547. One who makes a business of selling provisions for domestic use is held to warrant by a sale thereof that they are sound and wholesome. Add Ida. 3248 after the 4th par. on p. 547. § 4573. Vendor's Lien. Idaho. One who sells personal property has a special lien thereon, dependent on possession, for its price, etc, as in the 1st par. Add Ida. 3443 after Dak. 62 AMERICAN STATUTE LAW. § 4580. Record. MARYLAND. Such bills of sale must be released on record by the vendee upon payment or discharge : Md. 1886,368. § 4591. Frauds upon Creditors. IDAHO. The provisions of the 2d par., as to transfers or charges of property in fraud of creditors, are copied, following the California code : add Ida. 3020 after Dah. ; and the principal provision, that of the Stat. 13 Eliz., is omitted. Strike out the reference and citation in par. (a). Arizona. The provisions of the 2d par. on p. 557, that nothing herein con- tained applies to conveyances, etc., made upon good consideration to persons acting in good faith without knowledge of the fraud, are followed. Add Ariz. after Fla. in the 2d par. A reference should be made from this par. also to § 4503. § 4592. Of Land, to Defraud Purchasers. ARIZONA. The provisions of this section are omitted in the llev. Stats. Strike out Ariz. 2114,2115. § 4593. Revocable Conveyances. ARIZONA. All the provisions of this sec- tion are omitted in the Eev. Stats. Strike out Ariz. 2116,2117,2118. § 4594. Conveyances in Trust for the Grantor. ARIZONA. So, of this section. Strike out Ariz. 2124. § 4598. General Provisions. IDAHO, ARIZONA. The provision of the 1st par., that fraudulent conveyances are also void as against the heirs or representatives of the persons defrauded, appears to be omitted in the Eev. Stats. Strike out the references and citations in the 1st par. Arizona. The saving provision as to purchasers without notice is omitted. Strike out Ariz. 2137. § 4599. Sales in Fraud of Creditors. ARIZONA. The principal provision, that every conveyance or sale made by a vendor is presumed fraudulent unless ac- companied by delivery and followed by actual and continued change of posses- sion, is adopted. Add Ariz. 2034 at the end of the 2d par., and strike out Ariz. 2128 in the 3d par. ^ § 4602. Definitions. IDAHO, ARIZONA. The provisions of this section are omitted from the Rev. Stats., except that in Arizona real estate includes mining claims : Ariz. 2038. § 4620. Definition of Liens. IDAHO. The provisions of the California code are followed throughout, except as to the 1st par. Add Ida. 3325 at the end of the 2d par., and Ida. 3325-3330 after Dak. in the last par. but one. § 4621. Creation of Liens. IDAHO. An agreement may be made to create a lien upon property not yet acquired, etc. Add Ida. 3331 at the end of the last par. but one. A lien may be created by contract, to take immediate effect, as Security for the performance of obligations not then in existence. Add Ida. 3332 after Dah. in the last par. § 4622. Effect of Liens. IDAHO. The provisions of the first three pars, are copied in the Rev. Stats., following the California code. Add Ida. 3333-5 at the end of the 3d par. § 4625. Redemption from Lien. IDAHO. So, all the provisions of this section except those contained in the last par. have been adopted in the Rev. Stats. Add Ida. 3337-8 at the end of the last par. but one. § 4626. Extinction of Liens. IDAHO. The California provision of the last FIRST SUPPLEMENT: 1880, 1887. 63 par., as to effect of the voluntary restoration of property to its owner by the owner of a lieu thereon, is adopted. Add Ida. 3339 after Dak. at the end of the section. § 4640. Laborers, Maine. A lien upon logs or lumber cut has been enacted in a new statute. Add 1887,21 to the citation in clause (c) (2). Wyoming. So, in Wyoming. Insert Wy. 1483 after Ida. on the jBrst line of p. 564. Idaho. But it seems to be omitted from the Rev. Stats. Strike out the refer- ence and citation in the 1st line on p. 564. Florida. Law unchanged ; add 1887,3747,7 to the citation in the first line of p. 5G4. § 4641. Artisans. Flokida. Law unchanged ; add 1887,3747,5 to the cita- tion in the 1st par. Arizona. The lien holder making sale must give notice to the owner. Add Ariz, after Tex. in the last par. but one. Wyoming. Sale is made as in carriers' liens (see § 4354). Strike out Wy. 77,2 in the last line of the section. § 4642. Graziers' Liens. MAINE, Ohio. Law unchanged ; add 1887,1 ; 1886, p. 80 to the citations in the 1st par., respectively. Idaho. Under the Rev. Stats, a lien is given to ranchmen, stable-keepers, etc. Insert Ida. 3445 after Dak. in the 1st par., Ida. after Va. in the 2d par., and Ida. after Dak. in the last par. but one. Michigan, Wisconsin, Maine, Illinois, Kansas. In these states liens have been given to the owners of breeding stock, as in the 3d par. Add Miclu 1887,280 ; Wis. 1887,441 ; Me. 1887,52 ; ///. 1887, p. 17 ; and Kan. 1887,227 to the citations in that par., and insert Kan. before Neb. in the succeeding par. Nebraska. Add to the citation in the 3d par. 1887,3. Tennessee. Add to the citation in the 3d par. 1887,^. 213. Arizona. Stable-keepers are given a lien. Add Ariz. 2290 at the end of the last par. but one. § 4643. Liens on Ships. Maine. In Maine, by amendment, the lien does not apply to labor or materials furnished after the vessel is launched, or for its repair : Me. 1887,70. Alabama. The provision of par. (e) seems to be omitted in the new code. Arizona. Strike out the reference in par. (l) (1). § 4645. Duration. MAINE. Add to the reference in the 2d par. the citation 1887,70. New York. The lien lasts for thirty days after the debt is contracted : N.Y. 1886,88. Strike out clause (3) in the 2d par. § 4646. Enforcement. ARIZONA. Strike out Ariz. 2759 in par. (b). § 4647. Release of Lien. ALABAMA, ARIZONA. Strike out Ala. 3331 ; Ariz. 2764 ; omitted in the new revision. § 4648. Sale. ALABAMA, ARIZONA. Strike out the citations and references ; omitted in the new revisions. § 4652. [New Section.] Seed Liens. In Dakota any person furnishing grain, flaxseed, or potatoes for planting has a lien upon the crop produced from the kind of seed so furnished, which, if duly recorded, has preference over all other liens or incumbrances upon such crops: Dak. 1887,150. 64 AMERICAN STATUTE LAW. § 4653. [New Section.] Clerks and Employees. Book-keepers, agents, clerks, porters, and other employees of merchants, transportation companies, and other corporations have a lien of superior dignity to all others upon the stock, fixtures, and other property of such merchant, etc., for labor performed in the conduct of the business, to be enforced like mechanics' liens (Art. 196) : Fla. 1887,3747,10. § 4654. [New Section.] Idaho. Bankers have a general lien dependent on possession upon all proj^erty in their hands belonging to a customer for the balance due from such customer in the course of business : Ida. 3448. § 4700. Definitions: a Bill of Exchange. lUAHO. The provisions of the California code contained in this section have, in the Eev. Stats., been followed throughout, except only as to the definition of indorsement, and of negotiable instruments contained at the ])ottom of p. 572 : thus, insert Ida. 3520 after Dak. in the 4th par. of the section, Ida. 3521 after the 6th par., Ida. 3522-3 after Dak. in the 1st par. on p. 572, Ida. 3551 after Dak. in the 3d par. on that page, Ida. 3590-1 after Dak. Civ. C. 193-4 in the par. relating to checks ; but in Dakota only an indorsee of a check after maturity, without actual notice of dis- honor, acquires title equal to that of an indorsee before maturity ; and insert Ida. 3575-7 after Dak. in the par. in the middle of p. 572, providing that the general law of negotiable paper applies to promissory notes. § 4701. Negotiability of Notes. IDAHO. An instrument, otherwise negotia- ble in form, payable to a person named, but with the words added " or to his order " or " to bearer," or words equivalent thereto, is in the former case payable to the written order of such person, and in the latter case payable to bearer : Ida. 3465. The principal provision, that of the Stat. 3 and 4 Anne, c. 9, is omitted in the Eev. Stats. Strike out the reference and citation in the 1st par. Arizona. So, in Arizona, " an indorsee for value before maturity and without notice is compelled to allow only the just discounts against himself: " Ariz. 121. Strike out the reference and citations in the 1st par. Alabama. In Alabama a note payable to an existing person or hearer is nevertheless construed as if payable to such person or order : Ala. 1761. Strike out the reference Ala. in the 5th line of the 2d par. § 4702. Action by Indorsee. IDAHO. The principal provision is omitted ; see § 4701 above. Strike out Ida. ih. 4. Akizona. In Arizona " any person to whom a negotiable instrument has been assigned may maintain an action in his own name, which the original obligee or payee might have brought; but he shall allow all just discounts against him- self" : Ariz. 121. § 4705. Notes Payable to the Order of the Maker, IDAHO. Notes payable to the order of fictitious persons are deemed payable to the bearer. Insert Ida. 3467 after Dak. in the 3d par. Arizona. The provisions of this section are omitted from the Eev. Stats. Strike out references and citation. § 4706. Want of Consideration, ARIZONA, is a defence as between the original parties or indorsees with notice or after maturity. Insert Ariz.'* 128 after Texas throughout the 1st par. § 4709. Usury and Fraud. IDAHO. Usury is not a defence against any assignee before maturity for value and without notice, but the maker may never- FIRST SUPPLEMENT ; 188G, 1887. 65 theless recover the usurious interest paid by him from the original holder, fol- lowing the Minnesota statute. Insert Ida. 1266 after Md. in the 4th line of the 1st par., and Ida. after Mi)in. in the following line. § 4710. Of the Indorsement ; General Principles. IDAHO. All the provisions of this section are adopted in the liev. Stats., following the California code. Insert Ida. 3469-3475 after Dale, in the last line. § 4711. Warranty by the Indorser. IdAHO. The California code provisions as to warranty by tlie indorser are adopted in the Eev. Stats. Instirt Ida. 3476 after Dak. in the last line. § 4712. Indorsement in Blank. Idaho. The California code definition of indorsee in due course is adopted in the Kev. Stats. Insert Ida. 3481 after Dak. in tlie last line. § 4713. Anomalous Indorsement. A reference should be made from this sec- tion to § 4743, p. 589. § 4714. Indorsement after Maturity. ARIZONA. The Texas statute is fol- lowed, that the indorsee after maturity is liable to any defence which the maker might liave set up as against the payee before notice of the assignment. Insert Ai'iz. 121 after Tex. in the 3d and 4th lines. § 4720. Form of Acceptance. IDAHO. All the provisions of the California code contained in this section are followed in the Kev. Stats. : that an accept- ance must be written on the bill, but an acceptance written on a paper other than the bill will bind the acceptor as against a person who, on the faith thereof, gave value ; and that the holder may require acceptance on the bill, and may at his option accept a qualified acceptance or one written elsewhere than on the bill, or a refusal by the drawee to return the bill after presentment. Insert Ida. 3532 after Dak. in par. (A) ; change the citation in par. (b) to 3535, and iu par. (c) to 3533 ; and insert Ida. 3534 after Dak. in the last line of the section. Akizona. All the provisions of this section are omitted in the Eev. Stats. Strike out Ariz. 3469-3474. § 4721. Promise to Accept. Idaho. The provisions of the California code as to cancellation of acceptances, and the effect of the acceptance in admitting the signature of the drawer but not of the indorsers, are followed. Insert Ida. 3537-8 after Dak. in the 3d par. ; and strike out Ida. ih. 10 in the last line. Arizona. All the provisions of this section are omitted iu the Eev, Stats. Strike out Ariz. 3469-3474. § 4722. Time of Acceptance. Idaho. The provisions of this section are omitted in the Eev. Stats. Arizona. All the provisions of this section are omitted in the Eev. Stats. Strike out Ariz. 3469-3474. § 4723. Presentment and Demand. IDAHO. All the California code provi- sions contained in this section, except that in the last par., have been followed in the Eev. Stats. Insert Ida. 3483 after Dak. in the 2d par., Ida. after Dak. in the 4th par., Ida. 3527-3531 after Dak. in the 5th par. on p. 579, Ida. 3544-7 after Dak. Civ. C. 1907-10 in the par. in the middle of p. 579, and Ida. 3484 after Dak. Civ. C. 1856 below. The instrument may be presented either by the holder or by his agent. And insert Ida. 3548-50 after Dah at the bottom of p. 579, and Ida. 3524 after Dak. Civ. C. 1887 on p. 580. 65 AMERICAN STATUTE LAW. § 4724. Foreign Bills. IDAHO. All the provisions of the California code in this section have been adopted in the Eev. Stats. Insert Ida. 3552-3560 after Dah. in the last line of the section. § 4725. Apparent Maturity. IDAHO. All the provisions of this section have been followed in the Eev. Stats. Insert Ida. 3485-6 after Dak. in the 2d line on p. 581, and Ida. 3487-9 after Dak. at the end of the section. § 4726. Days of Grace. IDAHO, Days of grace are abolished in all cases, following the California code. Insert Ida. 3526 after Uta. in par. (C), and chanoe the word three io four ; and strike out the Idaho references and citations in pars, (a) and (B). Arizona. Bills at sight are entitled to the days of grace. Add Ariz, at the end of the 2d par., and strike out Ariz, in par. (B). § 4727. Holidays. MASSACHUSETTS, NeW YoRK, COLORADO. The first Mon- day of September, "Labor Day," is made a legal holiday: Mass. 1887,263; Col 1887, p. 327 ; N.Y. 1887,289. Oregon. So, in Oregon, the first Saturday in June. See below. New Hampshire. Election day is made a holiday. Insert N.H. 1887, Aug. 17, before N.Y. in the last par. but two on p. 582. Ehode Island. If the 30th of May fall on Sunday, the day preceding is not deemed a holiday. Strike out note '^, with the note sign on the 5th line of p. 583: E.L 1886,573. New York, New Jersey, Alabama. The principle of par. (b) is adopted, that bills or notes falling due on Sundays or legal holidays are payable on the secular day following. Insert in the 1st par. of (b) N. Y. 1887,289 & 461 ; N.J. 1886,200 ; Ala." 1759. Strike out the references to these states in par. (a), and N.J. ib. 15 in the last par. of (a). So, in New York, when holidays fall on a Sunday. Strike out N.Y. ib. 2 on p. 583, and insert N.Y. ib. 2 after Me. in the following par. Virginia. If a holiday fall on a Sunday, the Monday following is deemed a holiday, and the bill must be presented on the Saturday preceding. Insert Va. 1886,433 after Del. iu the first par. on p. 583, and strike out Va. 1880,103,1 in par. (b), and Va. ib. 2 in the second par. on p. 583. New York. Notes, etc., falling due on Saturday, a half-holiday, are payable or presentable on the next succeeding business day : N.Y. 1887,461. Every Saturday, from noon to midnight, is designated a half-holiday. Kansas. May 30 is declared a legal holiday : Kan. 1886,125. Oregon. The principle of par. (a) is adopted, that bills falling due on holi- days are payable or presentable on the day before. Insert Ore. 1887, 2'>- ^^ after Col. at the top of p. 582. January 1, any day appointed by the Governor for a Fast, May 30, Labor Day, being the first Saturday in June, July Eourth, any general election day or day appointed by the Governor for Thanksgiving, and Christmas Day are made holidays. New Jersey. If a note falls due on Sunday or a holiday, twenty-four hours is allowed beyond the day when the note is made due under this act, for giving notice : N.J. 1886,260. And the principles of this section are extended to checks payable on a specified day, or on a certain number of days after date ; and the same time is allowed for givinc: notice of dishonor. FIRST SUPPLEMENT : 1886, 1887. 67 Arizona. The principle is extended to all contracts which are to be per- formed on Sunday or holidays, and they are to be performed on the day suc- ceeding. Add Ay-iz. 2070 after DaJc. in the last par. but one. Idaho, Arizona. The Eev\ Stats, contain no special provision for holidays, etc., as to negotiable instruments. For general holidays, see § 4134. § 4728. Protest for Non-Acceptance. ARIZONA. Notice of non-acceptance or non-payment is required according to the rules of commercial law, together with protest by a notary. Add Ariz. 129 after lo. at the end of the 3d par. ; and Ariz, after Tex. at the end of the following par. ; for § 4725 read § 4731. Idaho. All the provisions of the California code contained in this section are followed in the Rev. Stats. Insert Ida. 3491-3501 after Dak. in the middle of p. 584; Ida. 3302-7 at the end of p. 584, and Ida. 3490 at the end of the section. § 4729. Form of Protest. CONNECTICUT. Protest by a notary is prima facie evidence of the facts stated when made without the State : Ct. 1084. Arizona. The protest is evidence of notice to the drawer and indorsers. Add Ariz, after la. at the end of the par. § 4730. Manner of Notice. IDAHO. The provision of the 1st par. is omitted in the Rev. Stats. Arizona. The notary protesting is required to give notice by mail and make record of the protest. Insert Ariz. 130 after Za. in the 6th par. on p. 586, and Ariz, after La. D. 325 in the last par, § 4731. Protest and Notice Abolished. ARIZONA. The provisions of the Texas statute are followed throughout, except that the holder must sue within sixty days after the right of action shall accrue, or at the second term of court. Add Ariz. 119 after Tex. 262, Ariz. 120 after Tex. 264, and Ariz. 124 after Tex. 268. For § 4141 at the end of the section read § 4036. § 4732. Acceptance for Honor and Reference. IDAHO. All the California code provisions contained in this section are followed. Insert Ida. 3539-43 after DaJc. in tlie last par. § 4733. Demand Notes. Idaho. Six months is deemed a reasonable time for presenting demand notes if they bear no interest. Insert Ida. 3578 after Dak. in the 6th par. § 4741. Who may be Sued. COLORADO. Suit may be brought against the drawer, acceptor, or indorsers, any or all of them in the same action. Insert Col. Civ. C.lo after Ncv. in the first par. Idaho. Under the Rev. Stats, this general provision applies equally to per- sons severally liable on all written instruments. Insert the note sign ", and change the citation in the first par. to 4106. WyOxMING. So, in Wyoming. Insert TFy." 2398 after Mun. in the first par. Arizona. Suit may also be brought against any or either of them separately. Add Ariz, at the end of the 1st par. And tlie Texas statutes are followed, that no judgment can be rendered against any person not primarily liable unless judgment has been previously or is at the same time rendered against the principal obligor, unless he is beyond the State, insolvent, etc. ; and this applies to all written instruments. Add Ariz.'' 687 after Miss, in the 3d par., and Ariz. 688 after Tex. at the end of the section. 68 AMERICAN STATUTE LAW. § 4742. Liability of the Drawer. Idaiio. The Eev. Stats. follow the Cali- fornia code, that the rights and obligations of a drawer of a hill of exchange are the same as those of the first indorser of any other negotiable instrument. In- sert Ida. 3525 after Dak. § 4743. Liability of the Indorser. IDAHO. The California code is followed, that one who makes liimself a party to an instrument intended to be negotiable, but which is left wholly or partly in blank, is liable upon it to an indorsee in due course in whatever manner and at whatever time it may be filled, so long as it remain negotiable in form. Insert Ida. 3482 after Dak. Civ. C. 1854, on p. 589 ; see also § 4713. The California code is also followed as to indorsements " without recourse." Insert Ida. 3477 after Dak. Civ. C. 1846, Ida. after Dak. in the following par., and Ida. 3478 after Dak. in the last par. i § 4744. Rights of Holder. For § 4031 in the 4th line on p. 590 read § 4032. Idaho. The California code is followed, that an indorsee of a negotiable in- strument has the same rights against every prior party that he would have had if the contract had been between them in the first instance, and that a want of consideration for the undertaking of a maker, acceptor, or indorser does not ex- onerate him from liability to an indorser in good faith. Insert Ida. 3479 and Ida. 3480 after Dak. in the last two pars., respectively. § 4745. Holder for Value. IDAHO. The California code is followed, that every signature is presumed to have been made for value before maturity, and in the ordinary course of business. Insert Ida. 3468 after Dak. in the 2d par. § 4746. The Title of the Holder. ARIZONA. The Minnesota statute is fol- lowed, that a signature is presumed genuine unless specially denied. Insert Ariz. 127 after Minn, in the 1st line of the 3d par. § 4750. Damages, when Allowed. AlilZONA. Under the Eev. Stats, it appears that the bill must be drawn within the territory, and indorsement therein is not sufficient to entitle the holder to damages. Add Ariz, after Tex. in the 2d par. on p. 591. § 4751. To whom Liable. CONNECTICUT. It appears that the holder is only entitled to damages from the drawer or indorsers in case of non-payment. Strike out the reference to Connecticut in the 4th par. Arizona. The Texas statute is followed throughout, that damages may be recovered by any holder from any person liable. Strike out the Arizona refer- ence and citation in the 2d par., and add Ariz, at the end of the 1st and 3d pars. § 4752. Interest and Costs. ARIZONA. Strike out Ariz. 3476 in the 1st par. The costs of protest and suit are allowed in addition to damages, as in Texas. Add Ariz, after Miss, in the first two pars, on p. 592. § 4753. Damages. ALABAMA. The holder is allowed five per cent damages in all cases. Insert Ala. after Uta. in par. (A) (1), and strike out Ala. in par. (A) (2). Idaho. The holder is allowed fifteen per cent when payable beyond the United States ; and ten per cent if drawn upon any of the United States east of the Eocky jNIountains ; or five per cent if in any state west of the Eocky Moun- tains, including Utah and Montana ; or two per cent if payable within the terri- tory. Insert Ida. 3562 in clause (A) (3); strike out the last sentence in division FIRST SUPPLEilEXT: 1886, 1887. 69 (a) ; change the word twenty-five in the 5th line before division (c) to ten, and the word twenty in the succeeding line to five; and insert Ida. after Dak. in the 1st line of p. 593. Arizona. By the Rev. Stats, ten per cent damages are given on bills payable beyond the United States or in another state without distinction. Insert Ariz. in clause (a) (2), strike out Ariz, in clause (a) (6), and insert Ariz, in clause (b) (3), and strike out the words and Arizona towards the end of divi- sion (b). § 4754. Exchange. ARIZONA. All the provisions of this section are omitted in the Eev. Stats. § 4762. Futures. Texas. By a new statute the buying, selling, or dealing in futures is made a misdemeanor. Insert 2'ex. 1887,13 after Ark. in the 1st par. Michigan. So, in Michigan, contracts to sell or buy futures are void. Insert 3Iich. 1887,199 after lo. in the 3d par. And bonds, notes, checks, etc., given for bonds or contracts given to the vendee of cereals binding the vendor to sell to such vendee any grain or cereals at a fictitious price, or a price double, or more, the market price are void ; and their issue or negotiation is made a penal offence : Mich. 1887,20. § 4801. Money of Account. ARIZONA. The provisions of this section are omitted in the liev. Stats. § 4811. Legal Rate. MICHIGAN. The legal rate of interest is six per cent. Add 1887,138 to the citation in the 1st par. Insert i/icA. after ///. in the 2d par., and strike out ARch. in the 3d par. Nevada. So, in Nevada, it is seven per cent. Add 1887,77 to the citation in the 1st par., insert iVev. after Cal. in the 3d par., and strike out Nev. in the next line. Arizona. So, in Arizona, it is made seven per cent instead of ten per cent. Insert Ariz, in the 1st line, and strike it out in the 3d line of the 3d par. § 4812. Contract Rate. DAKOTA. The restriction of the provisions of this section to certain special counties is repealed : Dak. 1887,207. Strike out note ", with the note sii^n. Arizona. Under the Rev. Stats, any rate may be contracted for in writing. Add Ariz. 2162 at the end of (a), and strike out the Arizona citation and refer- ence in par. (b). § 4815. Insurance and Taxes. A reference should be made from this section to § 1863. Pennsylvania. The provision authorizing the borrower to contract to pay taxes on the loan in addition to legal interest is repealed : Pa. 1887,177. § 4816. Compound Interest. Idaho. Interest upon interest cannot be re- covered, and no stipulation to that effect in the contract is valid. Insert Ida. before La. in the 4th par. Arizona. But this provision is left out of the Rev. Stats. Strike out Ariz. 3452. § 4820. Foreign Rates. ARIZONA. The Texas statute is followed, that the rate of interest in other states and counties is presumed to be the same as the home rate, and may be recovered without special allegation. Insert Ariz. 1876 after Tex. 70 AMERICAN STATUTE LAW. § 4831. Usury Laws. A reference sliould be made from this section to § 4819. Mississippi. By a new statute all persons are forbidden to receive usurious rates of interest. Insert 3Iiss. 1886,13 after Ala. in par. (b). § 4832. Penalty. A reference should be made to § 4819. Idaho. Under the Kev. Stats, usury forfeits the whole interest, as in par. (b). Insert Ida. 1266 after Dak., and insert (E) In Idaho, siich contract also works a forfeiture of ten cents on the hundred hy the year, and at that rate upon the amount, to tlie county school fund: Ida. 1266. Arkansas. All titles to property made as part of an usurious contract are void. Insert Ark. 1887,39,1 before Ga. in par. (C). Alabama. Insert {F) A hanker who discounts a note, hill, etc., at a hiyJier rate than eight jper cent is guilty of a niisdemeanor : Ala. 4140. § 4833. Recovery Back. ARKANSAS. In bills in equity to recover money or goods received usuriously, the plaintiff may not be required to pay any interest whatever, as a condition of granting relief, following the New York statute. Add Ark. 1887,39,4 at the end of tlie 2d par. of (b). Idaho. Strike out both references and the citation in this section ; the law is changed by the Eev. Stats. § 4834. state Suits. CONNECTICUT. Strike out the citation and reference : repealed ; and for Connecticut in the 4th line read Maryland. § 4840. Judgments. IDAHO. Strike out the note sign * to the citation in the 1st par. All judgments now bear interest ; the legal rate is always allowed upon a judgment, whatever may be the contract. Insert Ida. 1264 after Mo. in the last par. but one. § 4843. Other Contracts. IDAHO. Under the Eev. Stats. interest is payable on all contracts for tlie payment of money or loans, on money had or received for the use of another, on money lent, or on unsettled accounts, but not, as be- fore, upon all instruments in writing. Insert Ida. after Dak. in the last par. on p. 600, and strike it out on the last line on the page ; and insert Ida. before Mon. in the 4th and 5tli pars., and after Neb. in the 6th par., on p. 601. § 4845. After Maturity. MINNESOTA. The principal provision is extended to all contracts ; and any provision increasing the rate of interest after maturity, or after the making or delivery of the note, etc., works a forfeiture of the entire interest thereon ; except in the case of notes or contracts, which bear no interest before maturity : Minn. 1887,66. § 4850. Computation of Time. MAINE, CONNECTICUT, PENNSYLVANIA. Three states have, during the last two years, adopted standard time : Me. 1887,29 ; Pa. 1887,17; Ct. 3955. Art. 486. "Weights and Measures. Several states have adopted new standard weights and measures: N.H. 1887, Aug. 24; Ct. 3978-3981; Me. 1887, pp. 45 & 121 ; O. 1886, p. 31 ; 1887, p. 16 : 111. 1887, p. 309 ; Tenn. 1887,240; Ark. 1887,97; Ida. 1250-1 ; N.Y. 1887,337; in detail, the changes are as follows: New York. The barrel of apples, pears, potatoes, and quinces contains one hundred quarts dry measure : N.Y. 1887,337. If by weight, a barrel of potatoes is one hundred seventy-two lbs. Tennessee. A liquid barrel contains forty-two gallons. A bushel of wheat FIRST SUPPLEMENT : 1886, 1887. 71 sixty lbs. ; of Indian corn, fifty-six lbs. ; of barley, forty-eight lbs.; of buckwheat, fifty lbs. ; of corn meal, fifty lbs.; of pease, sixty lbs. ; of beans, sixty lbs.; of po- tatoes, sixty lbs. ; of apples, fifty lbs. ; of carrots, fifty lbs. ; of onions, fifty-six lb.s. ; of turnips, fifty lbs.; of beets and roots, fifty lbs.; of clover seed, sixty lbs.; of herdgrass or timothy seed, forty-five lbs. ; of parsnips, fifty lbs. ; of bran and shorts, twenty lbs. ; of flaxseed, fifty-six lbs. ; of fine salt, fifty lbs. ; of sweet potatoes, fifty lbs.; of cotton-seed, twenty-eight lbs, ; of millet seed, fifty lbs. ; of dried apples, twenty-four lbs. ; of apple seed, forty lbs. ; of blue grass seed, four- teen lbs. ; of corn in tlie ear, shucked, seventy lbs. ; unshucked, seventy-four lbs. ; coke, forty lbs. ; charcoal, twenty-two lbs. ; stone, eighty lbs. ; Hungarian grass seed, forty-eight lbs. ; lime, eighty lbs. ; slaked lime, forty lbs. ; peaches, fifty lbs. ; dried peaches, twenty-six lbs. ; plums, sixty-four lbs. The barrel of flour weighs one hundred and ninety-six lbs. ; of beef and pork, two hundred lbs. A barrel of apples contains two and one half bushels. Ohio. A bushel of wheat contains sixty lbs. ; of apples, forty-eight lbs. ; of English turnips, sixty lbs. ; of hemp seed, forty-four lbs. ; of millet seed, fifty lbs. ; of hominy, sixty lbs. ; of wild peaches, thirty-three lbs. ; of dried apples, twenty-two lbs.; of malt, thirty-four lbs.; of Hungarian grass seed, fifty lbs.; lime, seventy lbs. ; coke, forty lbs. ; bituminous coal, eighty lbs. ; cannel coal, seventy lbs.; corn in the ear, sixty-eight lbs.; tomatoes, fifty-six lb.g. ; peaches, forty-eight lbs. ; plums, fifty lbs Arkansas. The bushel of wheat contains sixty lbs. ; of rye, fifty-six lbs. ; Indian corn, fifty-six lbs. ; barley, forty-eight lbs. ; buckwheat, fifty-two lbs. ; oats, thirty-two lbs. ; corn meal, forty-eight lbs. ; pease, sixty lbs. ; beans, sixty lbs.; potatoes, sixty lbs.; carrots, fifty lbs.; onions, fifty-seven lbs.; English turnips, fifty-seven lbs. ; clover seed, sixty lbs. ; herdgrass or timothy seed, sixty lbs.; bran and shorts, twenty lbs.; flaxseed, fifty-six lbs.; fine salt, fifty lbs.; sweet potatoes, fifty lbs. ; cotton-seed, thirty-three and one-third lbs. ; millet seed, fifty lbs. ; dried peaches, thirty-three lbs. ; dried apples, twenty-four lbs. ; blue grass seed, fourteen lbs.; corn in the ear, shucked, seventy lbs.; unshucked, seventy-four lbs. ; red top, fourteen lbs. ; orchard grass, fourteen lbs. ; sorghum, fifty lbs. Minnesota. A bushel of wheat, clover seed, or potatoes contains sixty lbs. ; of rye or corn, fifty-six lbs. ; of oats, thirty-two lbs. ; of barley, forty-eight lbs. ; of buckwheat, forty-two lbs. ; of dried apples or peaches, twenty-eight lbs. : Minn. 1887,22. Idaho. A bushel of wheat contains sixty lbs. ; of rye, fifty-four lbs.; of In- dian corn, fifty-two lbs. ; of barley, fifty lbs. ; of buckwheat, forty lbs. ; of oats, thirty-two lbs. ; of flaxseed, fifty-six lbs. Maine. The bushel of oats contains thirty-two lbs. ; of beans, sixty-two lbs. New Hampshire. So, of beans, sixty-two lbs. ; of corn, fifty-six lbs. Illinois. The bushel of fine salt contains fifty lbs. ; and strike out the refer- ence on p. 604, fixing the size of a bushel of sweet potatoes. New Yokk. The barrel of potatoes weighs one hundred and seventy-two lbs. Missouri. The barrel of flour weighs one hundred and ninety-six lbs. Arizona. The statutes of weights and measures seem to be omitted from the Eev. Stats. 72 AMERICAN STATUTE LAW. § 5013. Release. CONNECTICUT, Apjzona. The provision of par, (b) is adopted, that a creditor may compromise with any one or more joint co-partners, and release him without discharging the others. Insert Ct. 1022 before Va. in par. (b), and Ariz. 133 after Dak. Civ. C. 869. This does not, in Arizona, impair the rate of contribution between joint contractors. Add Ariz, at the end of the last par. but one. § 5100. Definitions. ARIZONA. This chapter includes indorsers, guarantors, drawers of bills, and other sureties, as in Texas. Add Ariz. 2416 at the end of the 2d par. § 5101. Obligation of the Surety. ARIZONA. The Texas statute is followed, that no surety can be sued unless the principal be joined, when he can be reached. Add Ariz. 2415 after Tex. in the 2d par. § 5105. Suit by the Creditor. ARIZONA. The provision of par. (b) is adopted, and a surety may at any time after an action is accrued require a creditor to bring suit, and if he do not so commence suit within sixty days the creditor is discharged. Insert Ariz. 2408-9 after Ark. in clause (B) (1). Wyoming. So, in Wyoming ; such suit to be brought within a reasonable time. Add Wy. 3038-9 after Wash, in clause (b) (3) ; and Wij. 3040 after Ark. in clause (c) (1). § 5106. Execution. ARIZONA. The general provision is followed, that exe- cution issues first against the property of the principal, and in default thereof against that of the sureties. Insert Ariz. 241 1 after Miss. Wyoming. But this provision seems to be omitted from the Rev. Stats, of Wyomxing. Strike out the reference and citation. § 5120. Payment by the Surety. WYOMING, ARIZONA. The provision of par. (c) is adopted, that any surety by making payment is entitled to prose- cute a judgment against the principal. Insert Wy. 3041 ; Ariz. 2412 after Fla. § 5140. Contribution. ARIZONA. The provision of clause (1) is adopted, that any surety satisfying the contract is entitled to an assignment of it, and may have execution against the other sureties to recover their due proportion. Insert Ariz. 2413 at the end of clause (1), and Ariz, at the end of clause (2). § 5286. Contracts with Aliens. ALABAMA. The provision of this section seems to be omitted in the new code. § 5305. Firm Name. New York. A violation of this section cannot be used as a defence against an assignee or receiver or administrator of such partner : N.Y. 1886,262. Minnesota. Foreclosures of mortgages heretofore made in the firm name are validated : Minn. 1887,154. Ohio. The statute of 1884, requiring partners to record their names and resi- dences with the county recorder, is repealed: 0. 1886, p. 38. Strike out the whole of the last par. but two. Arizona. So, in Arizona, the corresponding statute is repealed or superseded by the Rev. Stats. : strike out the whole of the last par. but three ; and all the provisions of the California code above are followed : insert Ariz. 2403-6 after Dah Civ. C. 1443-6 in the 8th par., and Ariz, after Cal in the 7th par. § 5342. Certificate of Limited Partnership. IDAHO. The certificate must FIRST SUPPLEMENT : 1S86, 1887. 73 distinguish which are general and which are special partners. Strike out the word Idaho in par. (3). § 5344. Record. VIRGINIA. Law unchanged ; add to the citation 1886,187. § 5350. Renewals. CONNECTICUT. The attidavit must state whether the special capital has been reduced or impaired, and to what extent, in case of renewing a partnership, Massachusetts. No renewal can be made unless the capital of special part- ners equals or exceeds the aggregate amount the special partners originally con- tributed ; and the certificate of renewal must contain a statement to that effect, and also state the amount contributed by each special partner at the time of renewal: Mass. 1887,248,3. § 5352. Limitations. Idaho. New special partners may be taken in, as in New York. Add Ida. 3292 to the 1st par. § 5356. Capital. MASSACHUSETTS, VERMONT. The provision of the 2d par. is adopted, that any partner may annually receive lawful interest on the sum so contributed by him if the payment thereof does not reduce the original capital : Mass. 1887,248,2 ; Vt. 1886,82. And in Vermont, if there are profits actually earned, he may receive his proportion. Insert Vt. before N.Y. in the 4th par, Vermont, Alabama. In these states the partner infringing this section is liable for such an amount as will make good his share of the capital, but nothing is said about interest. Insert Vermont, Alabama in the exception of the 4th line of the last par. • § 5358. Firm Name. IDAHO. The provision requiring the names of general partners only to be inserted in the firm name appears to be omitted in the Eev. Stats. Strike out the reference and citation in the 1st par. Alabama. The addition of the word " Company" or any other general term seems not to be forbidden in the new code ; strike out the reference to Alabama in the 2d par. And in all special partnerships the word " limited " must be attached to the style and signature of the firm in all business transactions. In- sert J la. after 3Id. in the last par. but one, Massachusetts, A limited partnership which lawfully succeeds to the busi- ness of a former firm may, with the consent of the members of such firm or their legal representatives, adopt and use such firm name : Mass. 1887,248,1, § 5370. General Principles. MASSACHUSETTS. Law unchanged; add 1887, 248,4 to the citation. Idaho. The provisions of this section appear to be omitted in the Eev. Stats. Strike out Ida. ib. 18. § 5373. Fraud. New York. The statute making partners guilty of fraud in partnership affairs liable civilly to the person injured to the extent of his damage, is repealed : N.Y. 1886,593, § 5380. Assignments. Idaho. All the provisions of this section appear to be omitted in the Eev. Stats., concerning assignments by limited partnerships. Strike out the references and citations in the 1st, 3d, and 4th pars, § 6001. "Who are Citizens. CONNECTICUT. The provision of par. (b) seems to be omitted in the new Gen. Stats. § 6002 Expatriation. CONNECTICUT. The provision of the 1st par. seems to be omitted in the Gen. Stats. 74 AMERICAX STATUTE LAW. § 6005. Persons Unborn. IDAHO. The California code is followed, that per- sons unborn, but conceived, are deemed existing persons as to their interests. Add Ida. 2406 after the 1st par. § 6012. General Rights of Aliens. CONNECTICUT. The provision of par. (B) appears to be omitted in the new Gen. Stats. § 6013. Rights of Aliens as to Property. In several states radical laws against the holding of land by aliens have been passed : thus, in Illinois, the provision of par. (a) is repealed; and, by the act of June 16, 1887, no contract, agreement, or lease, written or parol, by which lands are leased by an alien or his agent for agricultural purposes, shall contain any provision requiring the tenant or any person for him to pay the taxes thereon, and all such provisions and agreements as to taxes are void ; and if the alien landlord or his agent receive in advance or at any time any money or thing of value from the tenant in lieu of such taxes, directly or indirectly, it may be recovered back by such tenant ; and all pro- visions or agreements in writing or otherwise to pay such taxes are void : 111. 1887, p. 4. (e) In Illinois a non-resident alien, firm of aliens, or corporation incorpo- rated under the laws of any foreign country, is not capable of acquiring title to or taking or holding any lands or real estate by descent, devise, purchase, or otherwise, except that the heirs of aliens who have heretofore (June 16, 1887) acquired land in the State, and those who may acquire lands under the provi- sions of this act may take such lands by devise or descent and hold the same for the space of three years and no longer, if such alien is twenty-one years old at the time; if not, for the term of five years from the time of acquiring such lands ; and if at the end of such time herein limited such lands so acquired by such alien heirs have not beeii sold to liona fide purchasers for value, or such alien heirs have not become actual residents of the State, the lauds shall revert and escheat to the State of Illinois as below provided ; provided that minor aliens actually residing in the United States may acquire title to lands in tlie State by purchase, and hold them for a term of six years after they miglit, under United States laws, have declared their intention to become citizens of the United States, and if at such time they have not become citizens of the United States, the lands so acquired by purchase shall revert and escheat in the same manner : 111. 1887, p. 5, § 1. And any alien resident of the United States who shall declare his intention of becoming a citizen thereof in accordance with the naturalization laws, and every alien female who shall in good faith become an actual resident of the United States, shall therefrom be authorized and enabled to take and hold real estate to him or her and his or her heirs and assigns forever, and may, during six years thereafter, sell, assign, mortgage, devise, and dispose of the same as if a natural-boi'n citizen ; provided, that such alien male shall at the time record with the register of deeds in the county where the lands lie a certified copy of his such declara- tion of intention, and such alien female shall so record her affidavit that she is in good faith such actual resident of the United States ; but no alien unless an actual resident of the State shall have power to lease or devise any real estate which he or she may take or hold by virtue of this provision : 111. ib. § 3. If any alien who has declared his intention of becoming a citizen shall not FIRST SUPPLEMENT : 1SS6, 1887. 75 become a naturalized citizen of the United States within six years after such declaration, and be living, and shall not have sold said real estate to purchasers thereof for value and in good faith, such real estate acquired by liim under this act shall revert and escheat to the State of Illinois, by information of tiie county State's attorney, service as in chancery cases, and sale of such real estate ; but any person not a party or privy may lay claim to such property or the proceeds thereof within ten years after judgment or five years after disability removed : 111. ih. §§ 4,7. Any alien non-resident of the United States who owned land in the State at the time this act takes effect may dispose of the same during his lifetime to hona fide purchasers for value and take security for the purchase-money as a citizen of the United States might do, except that if he or liis non-resident heirs again obtain title to said lands on any sale under judgment or decree for such pur- chase-money, he or his such heirs shall only hold title to said lands for three years after obtaining the same ; and if such lands so acquired are not sold in good faith to hona fide purchasers for value within said fime, they shall escheat to the State as above provided : 111. ib. § 8. So, nothing herein shall prevent the holder of any lien or interest in real estate heretofore acquired from holding or taking a valid title to such real estate, or prevent any alien from enforcing any lien or judgment for any debt or liability which may hereafter be created or be acquired by him or adjudged in his favor, or from becoming a purchaser at any sale by virtue of such lien or judgment ; 2^'^ovided, that all lands so acquired shall be sold within three years after title perfected in him, or, in default thereof, shall escheat as above : 111. ih. § 9. Colorado. In Colorado non-resident aliens are after this act forever prohib- ited from acquiring by any form of purchase to them or to their use agricultural, arid, or range lands in the State, or any interest, use, or benefit therein : Col. 1887, p. 24, § 1. Such lands are forfeit, if so acquired, to the State : Col. ih. 2. If any such interest shall come to any non-resident alien by devise, descent, or purchase at foreclosure or judicial sale, he may hold the same for three years with right of alienation, after which period they are forfeited : Col. ib. 4. This act does not apply to foreign corporations, syndicates, or individuals acquiring, owning, or working mines, or to corporations for engaging in any in- dustry other than the holding of agricultural, arid, or range land outside of incor- porated towns and cities : Col. ih. 5. Nor \vhen the value of the land or interest is assessed at less than $5,000 by any one holder : Col. ih. 6. Nebraska. And in Nebraska no non-resident alien can acqiiire or hold any real estate by purchase, devise, or descent ; provided that aliens now owning real estate may convey, mortgage, and devise it, and if they die intestate it shall descend to their heirs as if citizens : Neb. 1887,62. And by another statute, no non-resident alien who has not declared his intention to become a citizen of the United States, nor any corporation or association not incorporated under the laws of the State, shall acquire, own, hold, or possess by right, title, or descent accruing hereafter any real estate in the State ; provided that this shall not apply to real estate necessary for railroads. If any non-resident alien who is the owner of real estate at the time of the passage of this act shall die, his lands 76 AMERICAN STATUTE LAW. shall escheat to the State and his heirs be paid by the State the full value thereof, to be ascertained by appraisement upon oath made by the judge, treasurer, and clerk of the county where such lands lie, the expenses of appraisement to be deducted from such value paid : Neb. 1887,65. Wisconsin, Minnesota. And in Wisconsin no alien not a resident of the United States, and in Wisconsin and Minnesota no corporation not created under the laws of some state or territory therein, can hereafter acquire, hold, or own more than three hundred and twenty acres of land in Wisconsin, or one hundred and sixty acres, in the case of actual settlers, in Minnesota, who set- tled before 1889; or any interest therein, except such as may be acquired by devise, inheritance, or in good faith in the course of justice in the collection of debts heretofore created. The same law applies to corporations of which more than twenty per cent of the stock is owned by such aliens. All property acquired, held, or owned in violation of this act is forfeited to the State : Wis. 1887,479 ; Minn. 1887,204. In Minnesota, the District of Columbia, and all the territories no person who is not a citizen of the United States, or has not made lawful declaration of intention to become such citizen [or corporation, etc., see Part IV.], may here- after acquire, hold, or own real estate, except such as may be acquired by in- heritance or in good faith in the ordinary course of justice in the collection of debts heretofore created ; provided that this shall not apply to cases in which such rights are secured by existing treaties. Any such property is declared forfeited : Minn. 1887,204 ; U.S. 1887,340,1 & 4. Washington, Law unchanged ; add 1886,^. 102, to the citation in par. (a). Idaho. The provision of par. (a) is adopted, that aliens resident or not may take, hold, dispose of, and transmit by descent real and personal property in all respects as a native citizen. Insert Ida. 2827 after Dak. in par. (A). Connecticut. Non-resident aliens holding real estate for mining or quarry- ing purposes may convey the same : Ct. 17. Arizona. Under the Rev. Stats, the Texas statute is followed, that aliens may take and hold property in the same manner in which United States citizens may within the country of the alien, reciprocally. Add Ariz. 1472 at the end of the section, and in the 1st line of the last par. change the M'ord two to three. The law of 1885 is repealed ; strike out Ariz. 1885,.31, and Ariz, in the Exceptions on p. 658. § 6014. As to Personalty. ILLINOIS. In Illinois aliens may acquire and hold jiersonal property in the same manner and to the same extent as natural- born citizens of the United States: 111. 1887, p. 5, § 2. § 6015. Idaho. The general provision is adopted that the alienage of de- scendants does not invalidate their title to real estate descending to them. In- sert Ida. 5715 after Col. in the 3d par. But no non-resident alien can take by succession unless he appears and makes claim within five years of the intestate's death. Insert Ida. before Mon. in the 5th par. Aliens inherit personally as if citizens. Insert. Ida. 5715 in the citations in par. (b). Arizona. The Texas statute is followed, but any alien to whom land may descend or be devised has five years in which he may either become a citizen and take possession, or else sell the same before the land shall escheat : Ariz. 1472. FIRST SUPPLEMENT : 1886, 1887. 77 Alabama. All the provisions of this section seem to be omitted in the new code ; the general provisions (§ 6013) controlling. Strike out Ala. 2862 and the whole 7th par. Illinois. By the new statute aliens inherit their distributive share of per- sonal estate as if they were citizens. Insert III. 1887, p. 5, § 2, before Va. in par. (b), and strike out ///. 6,2 in the 2d par. of (a). So, the personal estate of an alien dying intestate shall be distributed in the same manner as estates of natural-born citizens. § 6016. Alienism of Ancestors, etc. IDAHO, ARIZONA. The provision of the 2d par. is adopted, that when a title to real estate is claimed by descent by a person capable at the time of inheriting, it shall be no bar that the ancestor from whom the descent was derived was an alien. Insert Ida. 5715 ; Ariz. 1472 in the citations to the 2d par. § 6017. Wives of Aliens. New MEXICO. A woman being an alien is not on that account barred of dower or her intestate interest. Add NJI. 1887,32,41 at the end of the 1st par. Territories. The widow of an alien who was entitled to hold land at the time of his death, has dower as if he had been a citizen if she be a resident in the territory at the time of his death : U.S. 1887,397,18. §6051. Marriage. TENNESSEE. Law unchanged ; add 1887,151 to the cita- tions in clause (2). § 6054. Civil Rights. PENNSYLVANIA. A civil rights act has been enacted in Pennsylvania as to inns, common carriers, theatres, etc. Insert Fa. 1887,72 after H.J. in clauses (1) and (2). § 6062. Office-Holding. MASSACHUSETTS. The office of Overseer of the poor may be held by a woman : Mass. 1886,150. Alabama. So, in Alabama, the office of notary public : Ala. 1887,36. § 6101. Civil Contract. ARIZONA. The provision declaring marriage a civil contract is dropped in the Eev. Stats. § 6104. Contracts to Marry. IDAHO. The California code is followed : Ida. 2427. Neither party is bound by a promise made in ignorance of the other's unchastity, etc. § 6105. Of the Dissolution of Marriage. IDAHO. The bond of matrimony is dissolved by the death of husband or wife, or by a divorce legally obtained. Add Cal. ; Dak ; Ida. 2455 after clause (2), and Cal, Dak. after clause (3). § 6110. Age of Consent. New York, ARIZONA. The age of consent to mar- riage is made eighteen in the male, sixteen in the female : N.Y. 1887,24 ; Ariz. 2087. Strike out clause (7). § 6111. Prohibited Degrees. ILLINOIS, ARIZONA. Marriages between first cousins are now forbidden : III. 1887, p. 225, Ariz. 2092. § 6112. Marriages Void. A reference should be made from this section to § 6130. Nevada. Under the new Gen. Stats, marriages contracted contrary to the provisions of § 6111 are void if solemnized in the State. Change the citation in par. (a) to Nev. " 487, and add the note sign " after Ncv. in par. (B). Idaho. The California code is followed exactly ; and if either party to a mar- riage is reported and believed by the other person to be dead, and such other 78 AMERICAN STATUTE LAW. person marry again, the marriage is only void from decree pronounced. Insert Ida. after Dak. in the 2d line of the 3d par. And under the Eev. Stats, all marriages between a white and a negro or mulatto are void. Insert Ida. 2425 after Col. in par. (f) (1). Arizona. So, in Arizona, all marriages between a white and an African, or descendant of Africans, are void. Add Ariz. 2091 to the citations in clause (P) (3). It is not expressly provided in the Eev. Stats, that bigamous marriages, or marriages w^hen either party is under the age of consent, or insane, or an Indian, or is convicted of crime, or when procured by force or fraud, are void. Strike out Ariz, in pars. (C), (D), Ariz. 1893 in par. (f), Ariz, in par. (F) (7), Ariz. 1906 in par. (G), and Ariz, in par. (H). North Carolina. So, in North Carolina, all marriages between an Indian and a negro are void : N.C. 1887,254. Wyoming. ]\Iarriages by parties under the age of consent are no longer void but voidable, as in § 6113. Strike out the citation and references in par. (C). Alabama. Change the citation in par. (a) to Ala. * 2307, and insert Ala. 2309 before N.M. in par. (c). § 6113. New York, Marriages when either party has not at the time at- tained the age of consent are voidable only when contracted without consent of the parent or guardian, and at suit of the woman only. Add the note signs *• **' to the reference to New York in par. (b), and 1887,22 to the citation ; and add to the notes Note" But suit to annul for this cause may be brought by the female only^ Idaho. Marriages are not voidable for nonage or lunacy, if the parties have voluntarily cohabited since the party has attained such age or recovered his reason. Insert Ida. after Dak. in the 5th line on p. 669, and in the 2d par. of (C). A marriage may be annulled when either party had a husband or wife liv- ing at the time. Insert Ida. after Dak. in par. (G). Add the note sign *" after Ida. in par. (d). Arizona. It is no longer expressly provided that marriages are voidable when either party was under the age of consent, or insane, or induced by fraud or force. Strike out the Arizona citations and references throughout pars, (b), (c), and (E). Wyoming. A marriage may be annulled if the consent of either party was obtained by force or fraud, but not if the parties have voluntarily cohabited since. Insert Wy. after Ida. in the 1st par., and after Dak. in the 3d par. of (E). § 6115. The Issue. Idaho. The issue of a marriage declared void for insan- ity or bigamy, when begotten before the decree, are legitimate. Add Ida. 2452 after Ky. in clause (b),(3), and Ida. after Dak. in clause (b) (5). Arizona. The issue of a void marriage are nevertheless legitimate. Add Ariz. 1470 after the 1st par. of (b). Strike out all the old Arizona provisions in this section. Wyoming. Where both parents are under lawful age, the issue are deemed the legitimate children of the oldest parent : Wy. 1589. § 6116. Enoch Arden Case. MAINE. The provision of par. (D) has been adopted, that if either husband or wife has been absent seven years together, the other, not knowing such party to be living, may marry without being subject to indictment for bigamy. Insert Me. 124,4 before Md. in par. (d). FIRST SUPPLEMENT : 1886, 1887. 79 Louisiana. So, after five years' such aLsence, as in par. (E) defined, the party marrying is not liable to indictment for bigamy : La. D. 800. Akizona. Strike out Ariz. 1930; see § 6115 above. § 6120. Preliminaries, MAINE, VERMONT, MICHIGAN, KANSAS, MARYLAND, Washington. Add to the citations in the 1st par. 1887,35 ; 1886,81 ; 1887,128 ; 1886,124; 1886,497; and 1886, p. 66, respectively. Michigan. Tlie notice must be filed with the clerk of the county where either of the parties resides. Insert Mich, 1887,128 before Ky. in the 2d line on p. 672. Arizona. So, with the recorder of deeds for the county. Add Ariz. 2088 after 3Io. in clause (4), below ; and Ariz. 2090 after Wy. 81,0, below. Maryland. Add 1886,261 to the citation in clause (7). But by a new law, tlie application must be made to the clerk of the Circuit Court where the mar- riage is to be solemnized: Md. 1886,497. Bans must be read, in addition to the license, on three Sundays by some minister in the county where the woman resides. Florida. It must be filed with the judge of the County Court where the marriage is solemnized : Fla. 1887,3720. Pennsylvania. Add 1887,105 to the citation in clause (10). § 6121. License. MICHIGAN, MARYLAND, WYOMING, ARIZONA. The clerk, etc., thereupon issues a license, as in the principal provision. Insert 3Iich. 1887,128 ; Md. 1886,497 ; Wy. ; Ariz, among the citations in the 1st par., and Md. and Ariz, among the citations to clause (2) of the 2d par. § 6122. Age of Parties. MARYLAND. The clerk, etc., is forbidden to issue a certificate to a male under twenty-one or a female under sixteen, save with the written consent, duly attested, of the parent or guardian ; he may examine the party or any witness under oath as to any subject relating to the legality of the marriage ; no license can be issued to parties under the age of consent or incompetent to marry : Md. 1886,497. Arizona. No license can be issued to a male under eighteen or a female under sixteen, except upon the written consent of the parent or guardian : Ariz. 2089. Kansas. The clerk may require an affidavit, etc., of the age of tlie parties. Insert Kan. 1886,124 after Pa. in the 3d par., aud Ka7i. after lo. 2189 in the 5th. Michigan, Wyoming. He may examine him concerning the legality of the marriage. Add Mich. 1887,128 ; Wy. 1545 to the citations to the 6th par. § 6130. Who may Solemnize. loWA, ISTeW YoRK. Add to the citations 1886,4; 1887,77, respectively. Strike out the references lo. in (D). Arizona. Under the Eev. Stats, the judge of any court of record may solem- nize a marriage. Insert Ariz, after Mon. in the 4th line of par. (D) ; and strike out Ariz, in the last line of (c), and the last line but one of (D). Connecticut. A marriage is void which is not contracted in the presence of an authorized person or society. Insert the w'ords Connecticut and before Ken- tacky in the last line but one of the section ; and Ct. 2789 before Ky. in the citation in the succeeding line. Idaho. A mayor may solemnize marriages. Insert Ida. after Dak. in par. (c). 80 AMERICAN STATUTE LAW. § 6132. Manner. The words 110 particular form is required should be in- serted after the word states in the 3d line, the sentence being ambiguous as it stands. § 6133. "Witnesses, in Idaho, are no longer necessary to the marriage cere- mony. Strike out the citation in the 1st par. § 6134. Age. A reference from this section should also be made to §§ 6110,6122. Arizona. Strike out Ariz. 1897 in par. (c). See § 6122. § 6135. Quakers and Sects. New York. Strike out the reference to New York in the 2d par., concerning marriages among Jews. § 6137. Informal Marriages. ARIZONA. In Arizona " all persons who at any time heretofore have lived together as husband and wife, and who shall con- tinue to live together for one year after this act takes effect (July 1, 1887), or until one of the parties shall die, if within such year, shall be considered as having been legally married, and all their children legitimate " : Ariz. 2095. § 6140. Record by the Person Solemnizing. MAINE. Law unchanged ; add to the citation 1887,35. See Me. 1887,115. Michigan. The person solemnizing a marriage is required to enter the facts and day of the marriage upon the license. Insert Mich. 1887,128 after Pa. in clause (2). § 6141. Return. Maine. Add to the citation in clause (2) 1887,35 ; and in- sert Mc. before Vt. in clause (3), the new statute requiring returns of marriages to be made also to the town clerk who issues the license. Michigan. So also in Michigan. Insert Mich. 1887,128 after 0. in clause (3). Maryland, Florida. Law unchanged ; add to the citations in clause (3) 1886,497 and 1887,3720, respectively. Washington. Law unchanged ; add to the citation in the last par. 1886, p. 66. § 6142. Certificate. IDAHO. The marriage certificate must state that the consent of a parent or guardian was duly given, if necessary. Insert Ida. after Wis. in the 3d line of the 2d par. ; and Ida. after Ky. in par. (d), the certifi- cate being returned as in § 6141. Maryland. The person solemnizing gives a duplicate certificate to the one returned to the parties. Insert Md. 1886,497 as a citation to par. (f). Territories. Insert at the end of the section (6r) In all the territories a certificate is required, stating the fact and nature of the ceremony, full names of the parties and the officer solemnizing, signed hy the parties, and filed and recorded in the probate court, ivhich is prima facie evidence of the marriage ; violation of this section is a misdemeanor. But nothing herein presents the 'proof of mar- riage, whether laicful or unlawful, hy any evidence now legally admissible : U.S. 1887,397,9-10. § 6144. Evidence. Maine, MICHIGAN, MARYLAND. Law unchanged ; insert 1887,47 ; 1887,128 ; 1886,497 after the citations in the first par., respectively. "Wyoming. Under the Rev. Stats, the marriage certificate is m?idie privia facie evidence of the marriage. Add Wy. to the references in the 2d par. Arizona. The Eev. Stats, omit this provision ; but see U.S. statute, above. Strike out Ariz. 1900. FIRST SUPPLEMENT: 1880, 1887. 81 § 6150. 'When Brought. MARYLAND. A libel to annul a marriage may be brought whenever the marriage is voidable. Insert Md. 1880,407 after Hcb. iu par. (a). Nevada. There is no provision in the new Gen. Stats, for the annulling of void marriages. Strike out the reference to Nevada in pars, (b) and (C). Idaho. Under tlie Kev. Stats, a libel to annul a marriage for nonage may be brought by the party so under age ; or by either party, when the former wife or husband of one of the parties is living at the time of the marriage, and such marriage is still in force ; or for force or fraud or impotence, by the party in- jured. Insert Ida. 2450 after Dak. in the 2d par. of (b), Cal. ; Dak. ; Ida. after N.Y. at the end of the 3d par. of (B), Ida. 2451 after N.Y. in par. (b) (4), and Ida. 2450 after Neb. in par. (b) (5). § 6151. By Whom. NEVADA. Sucli libel to annul may be brought by either party, etc. Insert Ncv. 490 after Ky. in the 1st par. Idaho. A libel to annul for nonage may not be brought by the party of age at the time, under the Rev. Stats. Suits to annul for nonage must be brought by the party under age within four years after arriving at the age of consent, or by the parent or guardian before such time : Ida. 2451. Insert Ida. after Dak. in the 2d line on p. 681. For bigamy, it may be brought by either party dur- ing the life of the other, or by the former husband or wife ; for idiocy, etc., by the party injured or his relations or guardian at any time before the death of either party; for force or fraud, by the party injured, within four years, as in clause (7) ; and for impotence, within four years after the marriage, by the other party. Insert Ida. after Dak. in clause (5), Ida. 2451 after Dak. in clause (6), and Ida. after Dak! in clause (7). § 6152. Where Brought. MASSACHUSETTS. Suits to annul a marriage may also be brought if the libellant has resided in the State for five years next pre- ceding, unless it appears that the libellant moved into the State for the purpose of obtaining such decree: Mass. 1886,36. Nevada. Suits to annul are brought in the Probate Court : Nev. 490. Wyoming. Strike out the reference Wy. at the end of the section. § 6153. Effect. IDAHO. The judgment of nullity is conclusive only upon the parties. Add Ida. 2454 to the citations in the 4th par. § 6154. Children, AHmony, etc. NEVADA. In these suits the court may decree for the care, custody, and maintenance of minor children as in divorce cases. Add Ncv. 490 to the citations in the 1st par. Idaho. The court awards the custody of children of a marriage annulled for fraud or force to the innocent parent, etc. Insert Ida. 2453 after Dak. in the 3d par. Arizona. All the provisions of this section seem to be omitted from the Eev. Stats. § 6157. Suits to Affirm. ARIZONA. All the provisions of this section seem to be omitted from the Eev. Stats. § 6200. Note. New MEXICO, Divorce laws have been enacted in New Mexico, leaving South Carolina the only exceptional state in this particular. Strike out the words and New Mexico in the 3d par. § 6201. Causes. WISCONSIN. A divorce may be granted when either party 6 S2 AMERICAN STATUTE LAW. shall have been insane for five years before action brought, and the court is satisfied that it is incurable : Wis. 1881,297. Oregon. The law in this section is unchanged ; but add to the citation 1887, f. 52. Washington, A divorce may be granted at the discretion of tlie court for in- curable chronic mania or dementia lasting for ten years; and add 1886,^9. 120 to the citation in par. (1). New Mexico. A divorce may be granted for cruelty, intoxication, or failure by the husband to support the wife. Insert N.M. 998 ; 1887,33 after La. in par. (1) ; and N.M. before Ariz, in pars. (4), (5), and (6). KoRTH Carolina. A divorce may be granted upon conviction for crime, etc. Add 1887,100 to the citation, and insert N.G. after W.Va. in clause (7). Alabama. Insert Ala. after Kan. in clause (9). See § 6210. Arizona, Idaho. Strike out the Arizona reference in clause (2), and the references to Idaho and Arizona in clause (13), with the whole of clause (8), and to Ariz, in clause (16). Add the note sign ^ to the Arizona reference in clause (5) ; and add to the notes '' Of the husband only. § 6202. Adultery, OREGON. Add to the citation 1887, p. 53. Arizona. A divorce is granted when the husband or wife is " taken in adul- tery," but not when committed by both parties, nor when the husband, who is libellant, "exposed his wife to lewd company whereby she became ensnared." Add Ariz. 2115 to the citations to the 1st par., Ariz." after Tex. in the 2d par. of (B) ; add the note sign " to Ai^iz. in the 1st par. of (B) ; and strike out Ariz. 1940 above, and Ao^iz. in the last par. but one. Idaho. Adultery is defined to be the voluntary sexual intercourse of a married person with a person other than the offender's husband or wife : Ida. 2458. Suit must be commenced within two years after the discovery. Add Ida. 2468 after Cal. in the last par. but one. § 6203. Impotence. Idaho. No divorce is now allowed for this cause. Strike out citation and references. § 6204. Desertion. OREGON. By the new statute the desertion need only be continued one year. Strike out Oregon in the 3d line of the section, and in- sert after Colorado in the 6th line. Arizona. So, in Arizona, it need only be continued six months ; strike out Arizona in the 7th line. It must be with intention of abandonment, wilfully, and without reasonable cause. Add Ariz, at the end of the 2d and 3d pars. Connecticut. So, in Connecticut. Add Ct. after B.I. in the 1st line of the 3d par. Idaho. Wilful desertion is defined to be the voluntary separation of one of the married parties from the other with intent to desert. Add Ida. 2460 after Dak. Civ. a 60 on p. 685. New Jersey. The time of imprisonment of the deserting party upon con- viction in another state or country is not counted as part of such three years : N.J. 1887,98. § 6205. Cruelty. ARIZONA. The definitions of extreme cruelty appear to be omitted in the Eev. Stats. Strike out the references in this section. Idaho. The California code is followed, that extreme crueltv is the infliction FIRST SUPPLEMENT : 1886, 1887. 83 of grievous bodily injury or mental suffering. Insert Ida. 2459 after Dah. in the 3d par. New Mexico. It is defined to be cruel and inhuman treatment, whether practised by using personal means or by other means. Insert N.M. before Ariz. in the last line of the 4th par. § 6206. Intoxication. OREGON, IDAHO. Intoxication habit need continue only one year to be cause for divorce. Strike out Oregon, Idaho in the 2d and 3d lines, and insert them in the 4th line of the section (Ore. 1887, p. 52). Idaho. Habitual intemperance is defined as in the California code. Add Ida. 2462 at the end of the section. Arizona. Habitual drunkenness is cause for divorce only when existin. 10 . . . 3279 7,. 10 . . . 4078 5376 2080 . . . 1722 474 . . 4911 7). 19-20. 3288 9 7<. 19-20. 4087-8 5377 , 2080 . . . 1722 . b. 11-2 . 3280-1 7;. 11-2 4079-80 5378 18,8,7 . . 3283 5379 2086 . . . 1728 ■b. 12 . . . 3281 7>. 12 . . . 4080 5380 476-7 . . ' 1913-4 112 AMERICAN STATUTE LAW. Gi)13 6015 0017 6050 6056 0058 6101 6110 6111 6112 6113 6114 6115 6116 6120 6121 6122 6130 6132 6133 6134 6135 613 6140 6141 6142 6144 6150 6151 Connecticut. Old 2.1,4-5 2,1,4 . 2 24 0152 6154 6157 6201 0202 6204 6205 6214 6216 6217 6222 6224 6225 0226 6227 0240 6241 6242 6243 6244 14,1,1 14,1,1 14,1,2 14,1,5 14,1,2 14,1,5 14,1,3 14,1,3 14,1,4 1877,14 New 15,16 15 Alabama. Old 2860 New . 1914 .26 2785 2785 2786 2789 2786 2789 2787 2787 2788 281 1877,14 . . 2813 14,3 &c. '. '. 2802 14,3,4 . . 2800 14,3,2-3; 1880, 23; 1885-35 . 2802-5 2672 . . 2070-1 . 2070,2673 . 2309 2307-8 . 2307 2673 4180 . 2681 &c. 2677-9 2678 '. 2074 . 2077 . ;075-6 2680 2680 2080 2073 1878,71 2802 6245 6246 14,3,2 . . 2803 14,3,2 . . 2803 14,3,5 . . 2807 14,3,8 '. 2809-10 1883,28 ; 1885,99 2811 14,3,7 2685 2691 2687 2690 2693 2688 2689 2690 2685 2692 2688 2699 2701 6248 14,3.6 28092701 280812700 . 2310 . 4017 2318-20 2314-0 '. 2315 . 2.311 . 2314 Nevada. Old 1879,43,1 New 2055 1879 &c. . . 4947-8,4764-7 195 196 196 2472 212-3 196 795 . 471 472,474 472 4700 488-9 472 2982 2312-3 2317 2317 2317 2310 2322 2328 2324 2327 2330 2325 2326 2327 2322 2329 2.325 2336 2338 203-5 474,479-81 Idaho. Old New 1870-7 &c ib. 3 . ib. 2 . ib. 5 . ib. 5-6 ib. 4 . ib. 7 . Prob. C. 198 198 198 197 199 1881,75 199 210 200 201 201-2 206 207 214 1875,22 1875,22 Nev. 216 219 1875,22 222 221 221 795 217 217 2338 217 2337218 474 474 474 473 475 474 476 480 482 477 477-8 476 48J 490 491 491 491 492 495 491 498 497 497 2982 493 493 493 494 1876 &c. 2429,2437 ib. 10 . ib 10. ib. 9 . ib. 9,11 l. 19 . b. 12 . ■h. 12-3 b. 14 . b. 20 . . 2420 . 2422 . 2421 . 2424 2424-6 . 2450 . 2428 316 . 6703 2431 2432 2430 430,2433 '. 2439 . 2434 2434-5 . 24.36 . 2440 Wyoming. 1874-5 &c. Ida". '. '. 1874-5 &c. 2457 2463 2464 6.3 6.8 . 6. 1-2 2409 2471 2483 Prob. C. 316 5703 i6. 7 . 2474 Old 42,6 81.1 . . 81.2 . . 3.5,111 &c. 35,111 &c. fb. 2r> . . 81,17 . . ib. 23 . . ib. 25 . . ib. 24 . . 81,13. . 81,4-6 . 81,5-6 . 81.8 . . 81.9 . . 81,15. . 81,14 . . 81,11-12! Wv. 81,10 81,*]6 . . 1882,40,3 ib. 26-28 . Wy- . . 1882,40,26 ('6. 30 . ib. 3 . . ib. 29 . . ib. 4 . . 1882,40,5 ib. 32 . . 1882.40,7 ib. 32 . . 1882,40,7 ib. 6 . . ib. 8 ib. 31 i6. 5 ib. 22 . 42,8 . ib. 14 . ib. 14 . 26. 13 . /6. 11 . ib. 15 . New 2226 . 1541 1542 1567 1507 1568 1.^.5 1689 1.591 1.590 1553 1544-6 1545-7 . 1548 . 1549 . 1555 . 1554 1551-2 . 15-50 . 1.556 . 1569 1592-4 . 1593 . 1592 . 1596 . 1569 . 1595 . 1570 . 1571 . 1598 15' 1598 1573 1572 Arizona. Old New 1892 1902 1903 1895 1897 1896 2092 2092 2087 2098 2090 2086 1574 1597 1571 1588 2228 1580 1580 1579 1577 1581 1898 . 1898-9 1904 1938 1907 1909 1940 1909 1910-58 1939-57 1941 . 2090 2090 2110 2110 2111 2115 2115 2115 2113 2333 2110 1915 2121 FIRST SUrPLEMENT : 18S6, 1887. 113 §§ Connecticut. Alabama. Nevada. Idaho. Wyoming. Arizona. Old New Old New Old New Old New Old New Old New 6249 218 . . . 494 ib. 19 . (6.17. . . 1585 . 1583 6250 6251 220,218 '. '. 496 (■6.20. . . 1586 2698 . . . 2335 6252 6261 14,3,5* .' 2807-13 102 . . 220 . . . 510 . 496 //>. 15 . . . 1581 6262 14,3,5 . . 2807 2696-7 . 2333-4 220 . . . 496 ib. 21 . . . 1587 6265 2694 . . 2331 220 . . . 496 ib. 7 . . . 2472 /ft. 12. . . 1578 1912 . . . 2120 6266 220 . . 218 . . . 494 . 493 ib. 16 . . . 1582 6281 2702 . . 2339 6285 2703 . . 2340 6350 2746 . . 2368 6351 1885,110,01 484 14,2,6 . . 2794 1882,40,18 . 1584 6352 164 . . . 512 6355 173 . . . 521 6356 175 . . . 523 Ida. . . . 4093 C. Civ. P. 185 4093 6401 1877,114,1-2 . 174 . . . 522 2796 1 6402 19,5,9 . . 2795 2704 . . 2344 166 . . . 514 1874-5 &c. . 2504182,6 . . . 1563 1979 . . . 2105 6403 19,5,9 . . 984 1877,114,2 . 2796 172 . . . 520 6404 19,5,9 . . 984 6410 1877,114,1 . 1165 ib. 2 . . 2725-6 163,167 . . 515 1874-5 &c. . 4479 6411 19.5,9 984,2925 2704 . . 2344 167 . . . 515/6.13 . . . 2504 82,7 . . . 1564 1979 . . . 2103 6412 1877,114 . 2925 167 . . . 515 6414 19,5,9. . . 984 82,8 . . . 1665 6420 1877,114 . 2925 2705 . . 2341 151 . . . 499 1874-5 &c. . 2495 82,1 . . . 1558 1960,1967 . 2100 ib. 5 &c. . . 2504 6421 1877,114 . 2925 168 . . . 516 //). 6 . . . 2498 6422 151,165 499,513 ib. 1 . . . 2495 82,1 . . 1558 1960 . . 1881,37 . . 2100 . 2100 6423 151 . . . 499 ib.\ . . . 2496 1967 . . . 2100 6424 14,2,1 . . 2720 151 . . 158 . . . 499 . 606 ib. 9 . . . 2497 1975 &c. . 2100 6426 1885,110,40 614 6427 • . ;6. 8 . . . 2499 6430 6431 1981 . . . 2109 153 . . . 501 ib. 3 . . . 2497 1969-70 . . 2611 6432 154-5 . . . 502-3 6433 152 . . 1.56 . . . 500 . 504 ib.2 . . . 2497 ib. 9 . . . 2505 ib. 9 . . . 2497 1968 . . . 2102 6440 6441 176 . . . 524//)- 14 . . 2,508 1988-9 . . 2097 177 . . . 625 /6. 16 . . . 2509 644^ 2172 . . 1810 178-180 . . 526-8 ib. 17 . . . 2510 1983-5 . . 2610 6443 6445 181 . 529 1986 . . . 2098 1987 . . . 2099 6450 1877,114 . 2925 159 . . . 507 82,1-2 . 1559 1960 . . . 2103 645-:? 14,2,8 . . 2929 6453 19,5,9 . . 984 2892 . . 2347 1070 . . . 3029 C. Civ. P. 185 . 4093 82,3 . . 1560 1962,2443 . 683 6454 1070-1 . 3029-30 C. Civ. P. 186 . 4094 1882,68 . . . 1560,2385 2443-4 . . 683-4 6455 19,5,10-2 . 985-7 Civ. C. 26 2386 6460 18,11,2 . . 537 2713 . . 2352 813 . . . .3001 82,4 . . 1561 1489 . . . 3232 6480 6500 18,6,10 &c. ' 2793 169-71 . 182 . . . 517-9 . 5.30 ib. 2 & 20 . 2922 82,9 . . 1566 1972 . . . 2103 Ct. . . . 2960 14 2,4 . . 2793 229 . . 184 . . . 2588 . 532 1882,1,2 . ib. 11 . . 2 .13 2000 . . . 2581 6501 249-51 . 2590-2 ib. 22 . 2498.2956 ib.a . 2956,2960 6506 . 188 . . . 531 6507 2237 . . 1899 248 . . . 2589 6509 4.5.24 . . 485 6520 19 5 11 . . 986 225 . . . 536 82,5 . . 1562 6521 223-4 . . . 535 Civ. C. 8'85-'91 5850-7 114 AMERICAN STATUTE LAW. 6522 6601 6605 6606 6608 6630 6631 6632 6633 6634 6636 6640 6641 6642 6643 6645 6647 6649 Art 666 CONXECTICUT. Old New 20,12,4 . . 2252 1882,30 &c." 3*402 1875,14 &c.' 630 14.4.1 &c. . 471-4 14.4.2 . . 472 Ct. 1880,29 &c. 471 14,4,2 . . 472 1885,110,66 472 ib 472 ) T. 14, C. 6 . ( 1738-44 Alabama. Old 2729 New 1887,41,10 2735 2742 &c. 2743 2744 2745 2745 2745 2357 2364 2365 2366 2545 2367 2367 Nevada. Old New 225-7 . . . 536-8 323 1883,73 &c 208 . . 1885 &c. 795 . 4943 600 484 609 2982 699 1883,73 &c. 1885,24 . 601.603,610 ib.b ib.i ib.l ib.2 tb.Q ib.2 ib.2 605 604 607 602 606 602 602 1879,93 . 611-26 Idaho. Old New t6. 894-5. 5859-60 ib. 899 . . 5858 1874-5 &c. . 2405 1876-7 &c. . 2535 Prob. C. 316 . 5703 1879 &c. . 2554 Prob. C. 316 . 6703 ib. 2-3 . 1879 &c. ib. 6 . . ib. 7-8 . Ida. ib. 7 (■6. 5 . . i6. 4 . . ib. 8-9 '. 2546-7 . 2545 . 2550 2280-1 . 2551 . 2549 . 2548 2552-3 Wyoming. Old 1879 &c. 42,7 . 2,1 &2 2,1 2,3 2,5 2,1-2 2,9 2,2 2,10 2,4 2,10 New 2282-4 . 2227 2274 . 2274 . 2276 . 2278 2274-5 . 2282 . 2275 . 2286 . 2277 . 2286 Arizona. Old 1466 1883 1886 1887 1885 New . 1470 1383-5 1888 1389 . 1387 1887 . . . 1390 1888-9 . 1389-91 LIST OF CHANGES IN THE LAW. ARRANGED BY SECTIONS OF AMERICAN STATUTE LAW. Ar.ABAMA. §§ 1042, 1171, 1501, 1560, 1614, 1615, 1619, 1624, 1625, 1626, 1702, 1954, 1967, 1968, 1972, 1974, 1976, 1978, 1980, 2034, 2182, 2G73, 2670, 3110, 3119, 3121, 3130, 3163, 8265, 3301, 4338, 4352, 4355, 4371, 4372, 4373, 4504, 4508, 4521, 4522, 4523, 4532, 4533, 4553, 4643, 4647, 4648, 4701, 4727, 4753, 4832, 5286, 5356, G014, 6002, 6112, 6201. 6214, 6244, 6261, 6353, 6356, 6401, 6402, 6403, 6404, 6411, 6412, 6414, 6421, 6422, 6427, 6442, 6450, 6452, 6454, 6456, 6480, 6482, 6500, 6503, 6505, 6520, 6521, 6C22, 6632. Arizona. §§ 74, 241, 277, 280, 360, 554, 557, 1021, 1023, 1040, 1042, 1043, 1044, 1140, 1141, 1142, 1143, 1144, 1145, 1146, 1154, 1156, 1159, 1171, 1332, 1371, 1377, 1401, 1402, 1403, 1404, 1421, 1440, 1454, 1474, 1475, 1480, 1482, 1501, 1502, 1550, 1551, 1564, 1566, 1567, 1572, 1573, 1574, 1579, 1582, 1585, 1595, 1597, 1599, 1600, 1604, 1611, 1614, 1617, 1618, 1620, 1621, 1624, 1625, 1626, 165.3, 1670, 1673, 1710, 1721, 1892, 1924, 1925, 1931, 1950-53, 1961, 1962, 1967, 19G8, 1970, 1971, 1972, 1973, 1974, 1976, 1982, 1984, 1985, 2034, 2180, 2182, 2184, 2185, 2188, 2189, 2190,' 2602, 2630, 2615, 2646, 2648, 2650, 2676; Art. 269; §§ 2702, 2703, 2704, 2808, 2809, 2818, 2823, 2825, 2842, 2843, 2844, 3101, 3105, 3106, 3107, 3109, 3110, 3111, 3113, 3115, 3121, 3123, 3130, 31.33, 3134, 31-35, 31.36, 3137, 3139, 3151, 3162, 3163, 3164, 3167, 3301, 4031, 4036, 4037, 4121, 41.34, 4140, 4142, 4144, 4145, 4175, 4177, 4192, 4338, 4355, 4356, 4393, 4501, 450-3,4530,453], 4532, 4-534, 4540, 4541, 4-542, 4543, 4591, 4592, 4593, 4594, 4598, 4599, 4602, 4641, 4642, 4643, 4G46, 4647, 4648, 4701, 4702, 4705, 4706, 4714, 4720, 4721, 4722, 4726, 4727, 4728, 4729, 4730, 4731, 4741, 4746, 4750, 4751, 4752, 4753, 4754, 4801, 4811, 4812, 4816, 4820; Art. 486; §§ 5013, 5100, 5101, 510-5, 5106, 5120, 5140, 5305, 6013, 6014, 6016, 6101, 6110, 6111, 6112, 6113,6115, 6116, 6120, 6121, 6122, 6130, 6134, 6137, 6144, 6154, 6157, 6201, 6202, 6204, 6205, 6206, 6207, 6208, 6213, 0214, 6222, 6224, 6225, 6241, 6242, 6243, 6244, 6245, 6246, 6248, 6249, 6250, 6251, 62-52, 6261, 6262, 6263, 6266; Art. 628; §§ 6350, 6353, 6403, 6111, 6412, 6421, 6427, 6431, 6432, 6440, 6441, 6442, 6451, 6452, 6455, 6500, 6501, 6507, 6520, 6521, 6522, 6632, 6640, 6641, 6642, 6G43, 6649. Arkansas. §§ 1110, 1582, 1585, 1944, 4359, 4371, 4372, 4373, 4832, 4833 ; Art. 480. California. §§ 1960, 1961, 1970, 4542, 4543, 6420, 6422. Colorado. §§ 240, 277, 551, 5-33, 561, 566, 1001, 1021, 1023, 1482, 1484, 1501, 1504, 1564, 1572, 1578, 1580, 1582, 1856, 1882, 1925, 1926, 1929, 1931, 1936, 4134, 4535, 4542, 4543, 4727, 4741, 6013, 6454. Columbia, District of. § 2809. Connecticut. §§ 73, 160, 277, 1023, 1040, 1042, 1043, 1581, 1582, 1585, 1624, 1676, 1905, 1925, 1926, 1927, 1932, 2104, 2182, 2188, 2254, 2258, 2676, 3010, 3101, 3105, 3107, 3109, 3110, 31G8, 3202 3276, 3301, 3304, 3308, 4132, 4G52, 4729, 4751, 4834, 4850, 5013, 53-'0, GOOl, 6002, C012, 6013, 6130, 6204, 6213, 6222, 6245, 6206, 6350, 6353, 6358, 6401, 6402, 6403, 6420, 6421, 6422, 6440, 6445, 6454, 6522, 6G40, 6644. Dakota. §§ 1179, 1G20, 1961, 2253, 4370, 4371, 4372, 4373, 4812, 6420, 6422, 6451, 6454. Delaware. §§ 1582, 1870, 6225, 6608. Florida. §§ 10, 11, 21, 22, 26, 31, 44, 50, 52, 53, 56, 62. 65, 70, 73, 74. 77, 87, 90, 91. 92, 93, 94. 9-5, 102, 121, 126, 127, 128, 131, 133, 135, 140, 141, 142, 14.3. 152, 157, 158, 163, 164, 186, 191, 192, 20l! 202, 204, 205, 207, 210, 212, 214, 210, 219, 220, 221, 223, 224, 236, 244, 245, 260, 266, 270, 275', 277, 282, 291, 303. 304, 309, 311, 312. 322, 332, 334, 3-38, 342, 361, 364, 393, 394, 395, .396, 406, 408, 415, 441, 464, 465, 511, 522, 657, 558, 559, 560, 5G1, 562, 604, 610, 990, 993, 994, 996, 1954, 19(50, 1961, 1962, 1964, 1965, 19G6, 1967, 1968, 1970, 1971, 1972, 1973, 1976, 1980. 4640, 4641, 4653, 6120, 6141. 116 AMERICAX STATUTE LAW. Idaho §§ 135, 561. 566, 1040, 1042, 1043, 1044, 1062, 1116. 1154, 1159, 1170, 1171, 1300, 1333, 1350, 1352, 1353, 1367, 1371, 1402, 1403, 1404, 1406, J420, 1422, 1423, 1424, 1426, 1440, 1454, 1401, 1470,' 1475,' 1500,' 1502,' 1564, 1565, 1578, 1579, 1582, 1583, 1584, 1593, 1595, 1597, 1601, 1606, 161l', 162o', 162l', 1624, 1625, 1670, 1672, 1675, 1850, 1852, 1853, 1855, 1856, 1858, 1860, 1864, 1870,' 1871,' 1882,' 1901,' 1925, 1944, 1950-1953, 1962, 1967, 1976, 1980, 1982, 1985, 2008, 2023, 2025! 2051! 2052! 2058,' 2102, 2104, 2182, 2185, 2189, 2206, 2253, 2501, 2602, 2618, 2640, 2642, 2644^ 2645^ 2646,' 2658, 2672, 2673, 2674, 2676, 2677, 2679, 2704, 2808, 2809, 2810, 2823, 2842, 2843^ 3107! 3111,' 3113, 3115, 3119, 3121, 3126, 3401, 3403, 4011, 4030, 4031, 4038. 4100, 4104, 4110,' 4117,' 4121, 4123, 4134, 4140, 4143, 4149, 4175, 4177, 4204, 4354, 4355, 4350, 4520, 4521, 453oi 4533', 4537, 4538. 4539. 4540, 4566, 4569, 4573, 4591, 4598, 4002, 4620, 4021, 4622, 4625, 4626,' 4640, 4642, 4654, 4700, 4701, 4702, 4705, 4709, 4710, 4711. 4712, 4720, 4721, 4722, 4723, 4724^ 4725, 4726, 4727, 4728, 4730, 4732, 4733, 4741, 4742, 4743, 4744, 4745, 4753, 4816, 4832, 4833! 484o', 4843; Art. 486; §§ 5342, 5352, 5358, 5370, 5380, 6005. 6013, 6014, 6010, 6104, 6105, 6II2! 6113, 6115, 6130, 6133, 6142, 6150, 6151, 6153, 6154, 6201, 6202, 6203, 6204, 6205, 6206, 6207, 6208, 6214, 6216, 6217, 6222, 6225, 6240, 6243, 6244, 6245, 6252, 6253. 0201, 6262, 6263, 6350,' 6353, 6356, 6401, 6421, 6422, 6430, 6431, 6432, 6433, 6440, 6442, 6443, 6445, 6460, 6500, 6502, 6506, 6602, 6607, 6608, 6009, 6032, 6042, 6643, 6701. Illinois. §§ 1906, 1968, 1972, 1976, 2104, 2188, 2258, 4535, 4642; Art. 486; §§ 6013, 6014, 6111. Indiana. § 3141. Iowa. §§ 442, 551, 554, 4371, 4372, 6130. Kansas. §§ 1179, 1482, 1483, 1484, 1501, 1626, 2253, 4134, 4642, 4727, 6120, 0122. Kentucky. §§ 557, 2104, 2188, 2189. Louisiana. §§ 1110, 1954, 4140, 6110. Maine. §§ 506, 2104, 2188, 3151, 3154, 3265, 4640, 4642, 4643, 4045, 4850; Art. 486; §§ 6116, 6120, 6140, 6141, 6144, 6241, 6266, 6631, 6632. Maryland. §§ 1415, 1960, 2005, 2051, 3301, 4580, 6120, 6121, 6122, 6141, 6142, 6144, 6150, 6222, 6452. Massachusetts. §§ 553, 554, 1360, 2254, 4134, 4354, 4355, 4356, 4372, 4727, 5350, 5356, 5358, 5370, 6062, 6152, 6226, 6353, 6460. Michigan. §§ 557, 561, 1907, 1960, 1964, 1965, 1966, 1967, 1968, 1969, 1970, 1971, 1972, 1973. 1974, 1976, 19S0, 1982. 1985, 1987, 2182, 2185, 2253, 3027, 4539, 4543, 4642, 4762,4811,6120, 6121, 6122, 6140, 6141, 6144, 6214, 6217, 6221, 6222, 6224, 6225, 6241, 6351, 6640, 6642, 6643, 6645. Minnesota. §§ 1619, 1620, 1624, 1676, 1853, 1988, 2182, 2253, 4143, 4845; Art. 486; §5 5305, 6013, 6451. Mississippi. §§ 1142, 1145, 1146, 1853, 4359, 4371, 4831. Missouri. §§ 1178, 1626, 1905, 1906, 2188, 3271, 4140, 4354, 4355, 4356 ; Art. 486. Nebraska. §§ 1560, 1581, 1582, 1585, 1611, 1617, 1018, 1620, 1621, 1024, 1031, 1070, 1073, 1905, 1963, 1967, 1968, 1970, 1971, 1972, 3100, 3111, 3302, 4642, 6013, 6248, 6249, 6411, 0420, 6422. Nevada. §§ 53, 202, 208, 209, 240, 270, 277, 282, 990, 1040, 1110, 1341, 1410, 1470, 1550, 1560, 1570, 1583, 1599, 1624, 1925, 1926, 1929, 1968, 1970, 1971, 2005, 2052, 2104, 2180, 2182,2253, 3154, 4140, 4532, 4533, 4541, 4546, 4811, 6112, 6150, 6151, 6152, 6154, 6222, 6224, 6225, 6266, 6353, 6422, 6500, 6520, 6640, 6641. 6642, 6643. New Hampshire. §§ 345, 2254, 2641, 4727 ; Art. 486 ; §§ 6248, 6264, 6350, 6351, 6642. New Jersey. §§ 1582, 1024, 2104, 2253, 2823, 3112, 4134, 4135, 4375, 4543, 4727, 6204, 6222. New Mexico. §§ 1151, 1153, 1157, 1611, 1018, 1620, 1621, 1024, 1625, 3010, 3012, .3020, 3022, .3024, 3025, 3100, 3102, 3103, 3105, 3100, 3107, 3109, 3113, 3115, 3116, 3117, 3119, 3120, 3121, 3123, 3125, 3126, 3130, 3133, 3136, 3138, 3141, 3151, 3152, 3154, 3163, 3167, 3202, 3204, 3212, 3213, 3241, 3242, 3243, 3244, 3246, 3248, 3249, 3262, 3265, 3301, 3304, 3307, 3309, 3401, 3402, 3404, 3405, 6017, 6200, 6201, 6205, 6226, 6356, 6420, 6422, 6454, 6608, 6631. New York. §§ 557, 558, 559. 1162, 1585, 1020, 1924; Art. 196; §§ 1901, 1962, 1963, 1964, I960, 1967, 1968, 1970, 1971, 1973, 1974, 1975, 1976, 1980, 1981, 1982, 1985, 1987, 2253, 2258, 3112, 4134, 4135, 4359, 4.371, 4372, 4.373, 4553, 4645, 4727; Art. 486; §§ 5305, 5373, 6110, 6113, 6130, 6135, 6471, 6647, 6649; Art. 666. North Carolina. §§ 1968, 1971, 1972, 1980, 2253, 6112, 6201, 6208. Ohio. §§ 234, 13.32, 1582, 1670, 1673, 1960, 1962, 1966, 1967, 1970, 1974. 1976, 1979, 1980, 3100, 3106, 3110. 3202, 3231, .3241, 3242, .3243, 3246, 3248, 3249, 3301, 3302, 3308, 453:i, 4642; Art. 486; §§ 5305, 6265, 6266, 6350, 6351, 6353, 6355, 6401, 6402, 6403, 6404, 6420, 6421, 6422, 6450, 6480, 6500, 6506. Oregon. §§ 1151, 1153, 1154, 1618, 1620, 1622, 1882, 4134, 4727, 6201, 6202, 6204, 6206, 6208, 6223. ADDENDA. 117 Pennsylvania. §§ 1937, 1960, 1963, 1964, 1965, 19G6, 1967, 1968, 1971, 1972, 1974, 1980, 2104, 3100, 3121, 3122, 4542, 4569, 4815, 4850, G054, 6120, (5411, 6421, 6422, 6450, 6453, 6454, 6455, 646oi 6482, 6500, 6520, 6642, 6649. Rhode Island. §§ 23, 241, 510, 551, 558, 560, 5G1, 563, 2104, 2258, 4727, 6225, South Carolina. §§ 364, 6422, 6500. Tennessee. §§ 1966, 1967, 1968, l'J70, 1976, 1980, 2034, 2104, 4642; Art. 486; §6017. Texas. §§ 1110, 2182, 3100, 3137, 3403, 4113, 4762, 6266. United States. §§ 3202, 321.3, 3214, 3215, 3216, 3218, 3246, 6017, 6142. Utah. §§ 1966, 1967, 2104, 2642. Vekmont. §§ 2254, 63.56, 6120, 6207, 6227. Virginia. §§ 4371, 4372, 4378, 4375, 4-376, 4543, 4727, 5344. Washington. §§ 240, 241, 1371, 1482, 1483, 1484, 1501. 1565, 1570, 1579, 1619, 1901, 1902, 1905, 1944, 1954, 2034, 2630, 4343, 4372, 6013, 6120, 6141, 6201, 6353, 6500, 6501. Wisconsin. §§ 557, 1440, 1489, 1961, 1964, 1966. 1970, 1972, 3027, 4040, 4642, 6013, 6201, 6608, 6640, 6642. Wyoming. §§ 241, 277, 553, 559, 561, 566, 1003, 1020, 1022, 1023, 1042, 1043, 1116, 1140, 1141. 1171, 1300, 1301, 1551, 1567, 1568, 1577, 1581, 1582, 1592, 1599, 1622, 1626, 1905, 1924, 1925. 1960, 1962, 1964, 1966, 1967, 1968, 1973, 1974, 1976, 1982, 2002, 2050, 2053, 2190, 22-33, 3131, 3261, 4032, 4134, 4354, 4530, 4531, 4532, 4538, 4640, 4641, 4741, 5105, 5106, 5120, 6112, 6113, 6115^ 612l', 6122, 6152, 6222, 6224, 6225, 6262, 6411, 6454, 6642, 6643. ADDENDA. Thk numbering of the General Statutes of Counecticut is not in all cases identical with the bill prepared by the Commi.ssi()ners ; and the South Carolina acts of 1887 were received by the author since the main body of this book was stereotyped. Connecticut. In § 73, the new citation should be 679; in § 160, 3269-3272; in $ 277 385; in ^ 1040, 418; in $ 1043. 4016; in § 1581, 29.56; in ^ 1582, 2954; the act of 1886 contained in § 1535 is omitted in the revision ; in ^ 1624 the citations should be 2961 and 807 ; in $ 1676 the act is omitted as in ^ 1585; in ^ 1905 the citation should be 2972; in § 1925, 3011,3023,3024,3028,3024,3026 respectively; in $ 1926, 3027; in $ 1927,3026; in $ 1932, 3011 and 3028 ; in § 2104, insert Ct. 1757 before Bl in par. (B). Utah. $ 240. Women are forbidden to vote, notwithstanding the statute ; strike out JJta. in $ 240 (F) : U.S. 1837,397,18. South Carolina. Iu $ 4-371, the usual statute against the fraudulent issue of ware- houseman's receipts is adopted. Insert South Carolina a-herWyoming in the 3d and 5th lines, and S.C. 1887,423,] in the citations at the top of p. 518, Add S.C. ib. 2 after 3Io. 554 la the next par., S.C. ib. 3 after TTy. in the following par., and S.C. after Ore. two lines below. The warehouseman, etc., cannot sell or remove the goods without the receipt-holder's written consent. Insert S.C, ib. 4 after Wij. in the following par. Warehouseman's receipts may be transferred by indorsement. Insert S.C. ib. 5 in the citations to the 1st par. of § 4372 ; and S.C before Ala. iu the 4th and 5th pars, on p. 519. In $ 4373, insert S.C. ib. 7 before La. in the last par. Idaho, Arizona. $ 6201. For clause (8) read clause (6) ; for clause (16) read (17). INDEX. The References are to Sections. A. Abutters, Rights of, in Land, 2206. Acceptance, 4720-4725, 4728, 4732. Accretion, 3012. Accusation, Riglit to Hear, 121. Acknowledgment of Deeds, 1570-1585. of Wills, 2642. Acts of Legislatures, 304, 309, 311-322, 1040- 1047. -Adoption, 6640-9. Adultery, 6202. Advancements, 3162-3167. Affirming Marriage, Suits for, 6157. Age of Marriage, 6110, 6122, 6134. Aliens, 102, 5286. Property Rights, 102, 6012-6017. Alimony, 6154, 6248-62G6. Allegiance (see Secession), 191. Amendments to Laws, Constitutions, etc , 900- 996. Apprentices, Art. 6G6. Appropriation Bills, 311, 312, 322. Arms, Right to, etc., 62. Army and Navy, 241, 243, 332. Assembly. C&ee Legislature.) Assessment (see Valuation), 334. Assignment of Mortgages, Contracts, etc., 1870, 1871, 4031-4088. Assignments in Bankruptcy, 5380. Attainder, 14.3, 1162. Attornment, 2008. B. Bankers' Lien, 4654. Bastards. (See Illegitimate Children.) Bill of Lading, 4343, 4359. of Rights, 1-164. Bills in tlie Legislature (see Acts), 303, 304, 311- 322. and Notes, 4700-4753. Bonds, of States, Counties, etc., 364 Bribery, 152. Carriers, 434.3-4355. Certificate of Marriage, 6140-6144. Charities. (See Mortmain.) Charters (see Corporations), 441, 442. Chattel Interests (see Years), 1341. Children, Status, etc., after Divorce, 024.3-6. Chose in Action, 4030, 4031. Churches (see Religious Rights), 44. Circuit Courts. (See Superior.) Citizens (see Aliens), 240, 6001-2. Civil Rights, 6054. Codes, Construction of, etc., 1021-102-3, 1047. Collusion in Divorce, 6214. Color Distinction (see Negroes), 21, 22. Common Law, the (see Laws), 1003. Common Pleas Courts. (See Special, Municipal.) Community Property, 3401-3405, 6252, 6433. Condemning Land (see Eminent Domain), 92, 93. Conditions in Estates, Contracts, etc., 1360, 1367, 1863, 1864, 4104. Condonation, 6216. Congress, Eligibility for, 219. Consideration (see Seals), 4121, 4123, 4706. Construction (see Words), 4204. Contract, 4100, 4110-4113, 0480-2. Conveyances (see Deeds), 1105, 1401 et seq. Corporations, 441, 442. Corruption of Blood (see Attainder), 14-3. Costs, 140. County Courts. (See Special, Municipal.) Courts (see Supreme, District, etc.), 551-559, 566. Covenants running with the Land, etc., 1461, 1500, 2058. Credit. (See Loans.) Creditors' Rights. (See Fraud.) Crime, Cause for Divorce, 6208. Crops, Mortgages on, 1853. Liens on, 1954, 2034. Cruelty, in Divorce Cases, 6205. Curtesy, 3301-3.309. D. Damages on Bills, etc, 4750-4754. Debts (see Loans), 361, 364. 120 INDEX. Deeds, Form of, etc. (see Convey ances),lbBl-1585, 6471, 6500-6511. Defeasance, in Mortgages, 1860. Demand (see Protest), 4723, 4733. Descent Cast, 1404. of Property, 3010-3154. Desertion of Wife, etc., 6204. Devise and Legacy (see TFiV/s), 2648, 2650, 2808- 2844. Discharge of Mortgages, 1901-1907, 4541. Discrimination by Railroads, etc., 465. Disseisin, Conveyances by Person Disseized, 1401. Dissolution of Marriage, 6110-6116, 6150-6157. District Courts. (See Superior.) Ditclies (see Drainage.) * Divorce (see Dissolution of Marriage), 6200-6266. Dower, 3202-3276, 6440. Drainage, Drains, etc. (see hrigation), 41.5, 1178, 2253. Duelling, 151. Dying witliout Issue, 1415. E. Education (see Schools), 50. Educational Qualifications, 245. Election (see Officer, Senator, Representative, Exe- cutive), 219, 236, 804. Day, 234. Qualifications of Voters, 240, 211, 243, 244, 245. Embezzlement, 157. Eminent Domain, 90, 91, 93, 94, 95, 1140, 1141, 1142-1146. Employees (see Laborers), 4653. Enclosures (see Fences), 2180. Equal, Men are, 11. Escheat, 1151-1159, 3125, 3126. Estoppel, 1454. Evidence in Divorce Cases, 6225. Ex Post Facto Laws (see Retroactive), 142. Executive, the State, 202, 207, 208, 260. Exemptions (see Homestead, War), 332. F. Fences, 2180-2190. Feoffment, 1470. Ferae Natural, 4040. Fines and Costs, 140, 164. Firm Name, 5.30-5, 5358. Fixtures, 2102. Foreclosure of Mortgages, 1882, 1924-1944, 4537- 4540. Forfeitures, 143, 164, 1403. Forms of Conveyances, etc., 1480-1504, 1579, 1601, 1675. Fraud, 4149, 4192, 4591-4.599, 4706, 5373. Frauds, Statute of, 4140-4149. Free and Independent, Men are, 10. Future Estates, 1350, 1421, 1423. Futures, 4762. G. Gaming Contracts, 4132. Gifts, 4501-4508. Governor (see Executive), 202, 207, 270, 280-291. Grace, Days of, 4726. H. Habeas Corpus, 126, 127. Half Blood, 313.3, 3134. Heirs, 3020, 3024, 3025, 3027. Holidays, 4134, 4135, 4727. Holographic Wills, 2645. Homestead Exemption, 84, 87, 6253. Hotel-keepers, 4.393. Husband and Wife (see Mairied Women), 0017, 6350-8, 6401-6522. I. Illegitimate Children, 3151-3154, 6631-2. Immigration, 65. Impeachment, 260, 266. Impotence, 6203. Incumbrances, 1502. Indictment, Prosecution by, 128. Indorsement, Indorsees, 4702-4705, 4710-4714, 4741-4744. Insane Persons, 6701. Insolvents, Conveyances by, etc., 4503. Insurance, 4815. Interest, 4811, 4812, 4816-4845. Intoxicating Liquors, 510, 511. Intoxication, Cause for Divorce, 6206. Inventory, Benefit of, 3024. Irrigation, 1179. Joint Estates, Tenancy, Ownership, etc., 1371, 4113, 5013. Jointures, 3241-3243, 3248. Journals of Legislature, 275. Judges, Appointment, Terra, etc., 560-502. Juries, Jury Trial, 73, 74, 131, 604. in Eminent Domain, 94. Justices of the Peace (see Municipal Courts), 559. Laborers, Mechanics, etc., 4640-1. Land. (See Real Estate.) INDEX. 121 Landlord and Tenant, 2002-2058, 4546. Lands, Public, 408, 1110, 1116. Language, 1001. Lapsed Legacies, 2823. Laws in Force, General, etc., 77, 394, 396, 1003. Local or Special, 395. Lease, 2053. Legislature, State (see Senator, Representative), 209, 270-277, 303-309. License to Marry, 6121. Liens (see ifechanics, Bankers, etc.), 1954, 2034, 4375, 4893, 4602-4654. Lieutenant-Governor, 202, 270, 282. Life Estates, 1422, 2023, 2025. Light and Air, Easement, 2254. Limitations of Actions, 393, 610, 6224. Limited Divorce, 0280. Partnership, 5305-5380. Liquors. (See Intoxicating Liquors.) Loans, 43.38. by States, Counties, etc., 345-360. Local Option (see Intoxicating Liquors), 511. M. Marriage, 5051, 6101, 6104, 6110-6144. Contracts, 6441-5. Married Women (see Husband and Wife), 6411- 6522. Property of, 26, 6017. Measures, 4800. Mechanics' Liens, 522, 1960-1988. Men and Women (see Married Women, Husband and Wife), 23, 6062. Militia, 291. Miners, 4504, 6602-9. Money, 4801. Mormons, 240. Mortgages of Real Estate, 1484, 1850-1944. of Personal Property, 4530-4546. Mortmain, 2618. Municipal Courts, 557, 558. N. Naturalization (see Citizen), 240. Neglect, Cause for Divorce, 6207. Negotiable Paper (see Bills and Notes), 4701. Negroes and Mulattoes, 21, 22. Nextof Kin, 3139. Notes (see Bills), 4701. Notice. (See Protest.) Nuncupative Wills, 2702-2704. o. Oath of Office, 224. Officers, Appointment or Election of (see Sena- tor, Representative), 210, 219, 220, 221. Officers, Qualifications of, 221, 223. Tenure, 211. Removal (see Impeachment), 266. Omission of Children, etc., in Wills, 2842-2844. " Omnibus Clause," in Divorce, 6213. P. Pardons, Power, Board of, etc., 160. Partnership. (See Limited Partnership.) Passes, Free, 464. Pay. (See Salaries.) Per Stirpes, per Capita, 8137. Perpetuities, 1440. Personal Property, 4011. Persons, Accused, Rights of, 121-143. Unborn, 3135, 6005. Tews, 1300. Pledges, 4520-3. Plurality of Offices, 220. Police Courts. (See Special, Municipal.) Poll Tax (see 7\ix), 338. Posthumous Children, 2844, 3136. Power of Sale, 1924-1929. Powers in Deeds, etc., 165.3. of Attorney, 1670-1676. Principal. (See Agent, Surety, etc.) Proof of Deeds, 1592-1606. Property. (See Rights.) Qualifications (see Election), 244. Protest of Bills, etc., 4723-4720, 4728-4731. Publication of Laws, 1041. Punishments, 141. Purchase-money Mortgages, 1864. R. Railroads, 464, 465. Real Estate, 1300, 1301, 1550. Receipts of Warehousemen, etc., 4370-4373. Record of Conveyances, etc., 400, 1611-1631, 4530-2, 4553, 4580. Recrimination in Divorce, 6217. Redemption from Mortgages, etc., 1944, 4540. Registration of Voters, 236. of Deeds, etc. (See Record.) Release of Debtors, 5013. Religious Rights, 44. Remainders. (See Reversions.) Rent, 2028, 2025, 2031. Repairs of Real Estate, 1833. Repeal of Statutes, 1012-1013. Representation, Right of, etc., 186. under Wills, etc., 2823, 3138. Representatives, State, 205. Reprieves, 163. Residence Qualifications, 204, 205, 207, 208, 241, 243. in Divorce, 6222. Retroactive Laws (see Ex Post Facto), 1044. 122 INDEX. Reversions and Remainders, 1352, 1424, 1426. Revisions, Kew (see Codes), 1047. Revocation of Wills, 2672-2679. Rights, General, to Property, etc., 70. Salaries, 209, 214, 216. Sale of Goods by Carriers, etc., 4354-4356. Sales in General, 4566-4599. Scliools, 52, 53, 342. Scire Facias, 1987. Seals, Unnecessary, etc., 1564, 1565, 2641. Secession, Right of, etc., 191, 192. Seeds, Liens for, 4652. Senators, State, 204. Separation of Husband and Wife, 6350-8. Session of Legislature, 277. Settlers. (See Lands.) Sex Distinctions (see Married Women, Men and Women), 2Z. Sliclley's Case, 1406. Ships and Vessels, Liens on, 4643-4648. Slavery, Slaves, 31. Soldiers, Exemptions, etc., 332. Sole Traders, 6520-2. Special Courts, 557. Stockjobbing. (See Futures.) Succession, 2501. Sufferance, Tenant by, 2050. Suffrage, Right of. (See Election Qualifications.) Sundays (see Holidays), 4135. Superior Courts, 554. Support of Land, 1170. Supreme Courts, 553. Surety, 5100-5140. T. Tax, Taxation, 332-344, 2042. Telegraph, Telephone, 2258. Tenant, Tenancy. (See Landlord and Tenant, Life, Years, etc.) Tender, Offer of Performance, 4175, 4177. Tenure of Office (see Officers of Land), 8130. Term to Term Tenancy. (See Year to Year.) Timber. (See Trees.) Time, Computation of, etc., 1023, 1040, 4850. Tortious Conveyances, 1402. Transfer, 1062. Treason, 143. Trees, Timber, etc., 2104, 2192. Trust-deeds, 1892. Trusts, 1710, 1721. u. Universities (see Schools), 56. Uses, Statute of, 1702. Usury, 4706, 4831-4834. V. Valuation, 334. Vendors' Liens, 1950-1953, 4573. Venue, and Change of, 133. Volunteers in Contracts, 4117. w. War Exemptions, 158. Warehousemen, 4870-4893. Warranty, 1504, 4569. Waste, 1332, 1353, 1377, 1931, 3231, 3308. Water Rights, 1171. Weights and Measures, 4860. Widow's Waiver, Intestate Share, etc., 3261- 3265. Will, Tenant at, 2051. Wills and Testaments, 2602-2844, 6160. Witnesses to Deeds, Wills, etc., 1566, 1567, 1595, 2644, 2650. Process for, 135. Women. (See Men and Women.) Words, Meaning of, etc., 1020-1022, 1474, 1501, 1550. Year to Year, Tenancy from, 2005, 2052. Years, Estates for, 1841. Uxiviiijsnv PiiEss: John Wilson & Son, C.^mukidge. miVEKSIT^ #^^S. %