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 f?l5 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 A MANUAL 
 
 or 
 
 ELEMENTARY LAW 
 
 BEING A SUMMARY OF 
 
 THE FUNDAMENTAL PRINCIPLES OF 
 AMERICAN LAW 
 
 BY 
 
 WILLIAM P. FISHBACK 
 
 LATE DEAN OF THE INDIANA LAW SCHOOL 
 
 REVISED BY 
 
 ARNOLD BENNETT HALL 
 
 OF THE FACULTY OF THE UNIVERSITY OF WISCONSIN 
 
 INDIANAPOLIS 
 
 THE BOBBS-MERRILL COMPANY 
 
 PUBLISHERS
 
 Copyright 189f» 
 
 BY 
 
 THE EOWEN-MERRILL COMPANT? 
 
 Copyright 1915 
 
 BT 
 
 THE BOBBS-MERRILL COMPANY 
 
 T 
 
 1915
 
 ft 
 
 PREFACE TO REVISED EDITION 
 
 This revision of the "Manual of Elementary Law" 
 is the product of several years use of the book by the 
 editor as a text for classroom instruction. Its object 
 is to bring the original edition down to date and make 
 it harmonize with modern tendencies in legal develop- 
 ment. It seeks to give a bird's-eye view of the law, 
 classified and organized along lines followed in modern 
 law schools and in legal literature. 
 
 The editor has proceeded on the theory that such a 
 volume would be of servfce to two classes of students 
 and readers. The first class are pre-legal students. 
 Some place before the student enters upon the spe- 
 cialized study of the law, he needs to be informed as 
 to the meaning of the terms which he must needs em- 
 ploy from the moment he studies his first assignment, 
 the general classification of the subject-matter, and its 
 place in the social order. The purpose of such a vol- 
 ume is not to impart a legal education or to duplicate 
 certain portions of professional study, but to bring to 
 the student an appreciation of the nature, character 
 and fundamental conceptions of the law, and to vitalize 
 its study by showing its fundamental relation to the 
 processes of social evolution as well as to the prac- 
 tical affairs of everyday life. 
 
 The second theory followed in the revision of the 
 volume is that it would be valuable to that much 
 larger class of students interested in some phase of the 
 social sciences. No scheme of education in these sub- 
 jects would seem complete unless it involved some 
 
 v 
 
 675995 
 
 LAW
 
 VI 
 
 PREFACE 
 
 knowledge of the legal system, its nature, its content 
 and its sources. For the law is the instrumentality 
 through which social control may be established and 
 social, economic and political reforms achieved. 
 
 In the preparation of the new material that has been 
 added there is no claim to originality. All available 
 material has been consulted and under such circum- 
 stances it is impossible to give credit where credit is 
 really due. Because of the uniform satisfaction which 
 the author's style of exposition has given, the phrase- 
 ology has not been changed or sections rewritten ex- 
 cept where necessary. The editor wishes gratefully 
 to acknowledge many helpful suggestions and criti- 
 cisms from his colleagues in the Department of Po- 
 litical Science and in the Law School of the University 
 
 of Wisconsin. 
 
 Arnold Bennett Hall. 
 
 Madison, Wisconshi, July 2, 191$.
 
 PREFACE TO FIRST EDITION 
 
 In this manual an effort has been made to put the 
 reader in possession of a summary of the well-settled 
 elementary principles of the law, by stating them dog- 
 matically in language as simple as the subject admits 
 of. After all that is said derisively about the glorious 
 uncertainty of the law, there are many rules of civil 
 action regulating the political, business and domestic 
 relations of life which may be said to be settled. It 
 has been the effort in these pages to collect these rules 
 from authoritative sources and print them in a form 
 at once comprehensive and compact. What may be 
 objected to as a defect I count one of the chief merits 
 of the book, viz., the absence of notes and citations. 
 There is no claim to originality except in the matter 
 of the method of stating and arranging the materials 
 which have been accumulated by the labors of others. 
 The fruit of these labors has been appropriated with 
 freedom and without compunction, and it is my belief 
 that no rule of law is stated which is not supported by 
 adequate authority. It would have been an easy mat- 
 ter to swell the size of the volume bv a collection of 
 foot-notes and a list of decided cases; but for the be- 
 ginner I believe that such citations tend to confuse, 
 rather than to instruct. Of course, this does not apply 
 to advanced students, or to those who are pursuing a 
 post-graduate or university course of technical profes- 
 sional instruction, but it is relevant to the vast ma- 
 jority of beginners who are to make up the bulk of 
 the legal profession. 
 
 vii
 
 viii PREFACE 
 
 The book may have its use in other fields. The 
 general reader may find here in outline a statement 
 of the sources and foundations of the laws under 
 which we live, as well as many rules and principles 
 of business which may serve to admonish and guide 
 him in the performance of the duties of citizenship. 
 Some knowledge of these should form a part of the 
 education of every citizen, and a familiar acquaintance 
 with them will create in the minds of all a higher 
 sense of the dignity and usefulness of the legal pro- 
 fession, and a better appreciation of the value of up- 
 holding a system of jurisprudence, the maintenance of 
 which is essential to the progress if not to the preser- 
 vation of society. W. P. F. 
 
 January, 1896.
 
 TABLE OF CONTENTS 
 
 PART I. 
 
 NATURE AND SOURCES OF THE LAW. 
 
 CHAPTER I. 
 DEFINITION AND NATURE OF THE LAW. 
 
 Section. Page. 
 
 1. Definition of law in general 1 
 
 2. Law in the abstract sense 3 
 
 3. Legal rights and duties 5 
 
 4. Liberties 5 
 
 5. Powers 6 
 
 6. Moral rights and duties 7 
 
 7. Scope of legal right 7 
 
 8 The right of personal security 8 
 
 9, The right to life 8 
 
 10. The right of personal liberty 9 
 
 11. Habeas corpus 9 
 
 12. Right to health 10 
 
 13. Right to reputation 10 
 
 14. Right to property 11 
 
 15. The administration of justice 12 
 
 CHAPTER II. 
 • KINDS AND SOURCES OF LAW IN THE UNITED STATES. 
 
 16. Written and unwritten laws 15 
 
 17. Kinds of written law in the United States 15 
 
 18. The unwritten or common law 16 
 
 19. Historical and legal sources of the law 17 
 
 20. Historical sources of the common law 18 
 
 21. Growth of the common law 18 
 
 22. Common law in the United States 19 
 
 CHAPTER III. 
 
 STATUTES. 
 
 23. Statutes as legaJ sources 21 
 
 24. Constitutions 21 
 
 ix
 
 X TABLIC OF CONTENTS 
 
 Section. Page. 
 
 25. Validity of statutes 22 
 
 26. Retroactive statutes 23 
 
 27. Public and private statutes 24 
 
 28. Interpretation of statutes 24 
 
 29. Statutes the most important of all legal sources 26 
 
 CHAPTER IV. 
 CUSTOM AND PRECEDENT. 
 
 30. Origin and nature of general customs 29 
 
 31. General customs as legal sources of the law 30 
 
 32. Decreasing importance of custom as a legal source 31 
 
 33. Particular customs 31 
 
 34. Judicial precedent as a legal source of law 32 
 
 35. Declaratory and original precedents 32 
 
 36. Importance of precedents 33 
 
 CHAPTER V. 
 SOCIAL UTILITY OF THE LAW. 
 
 37. Some basis of regulating conduct necessary in modern 
 
 society 34 
 
 38. The basis of regulating conduct to be one that is gen- 
 
 eral and equal in application 35 
 
 39. The state's basis of regulating conduct to be one that 
 
 guarantees certainty and uniformity 36 
 
 40. Courts of Justice versus courts of law 38 
 
 41. Certainty frequently more Important than justice 40 
 
 42. Scientific character of the law 40 
 
 43. Law a protection against error and corruption 41 
 
 44. The defects of the law 43 
 
 PART II. 
 
 THE LAW OF TORTS. 
 
 CHAPTER VI. 
 TORTS IN GENERAL. 
 
 45. Classification of the law 45 
 
 46. Definition of a tort 46 
 
 47. Torts distinguished from crimes 44 
 
 48. Torts distinguished from breaches of contract 47 
 
 4?. Theory of the law of torts 47
 
 TABLE OF CONTENTS XI 
 
 CHAPTER VII. 
 SECURITY OF THE PERSON. 
 
 Section. Page. 
 
 50. The right to life 49 
 
 51. When life may be lawfully taken 49 
 
 52. Remedies 50 
 
 53. Recovery for injuries causing death 50 
 
 CHAPTER VIII. 
 ASSAULT AND BATTERY. 
 
 54. Assault and battery in general 52 
 
 55. The ability and intent to injure 52 
 
 56. Battery defined 53 
 
 57. The intent of the wrongdoer 53 
 
 58. Consent of the one injured 53 
 
 59. Justification for battery 53 
 
 60. Self-defense 54 
 
 61. The remedies 55 
 
 CHAPTER IX. 
 FALSE IMPRISONMENT. 
 
 62. Definition 56 
 
 63. The detention or restraint 56 
 
 64. The unlawfulness of the restraint 57 
 
 65. Lawful restraint without legal process 57 
 
 66. Lawful restraint uBder legal process 58 
 
 67. Officers 59 
 
 68. Remedy 60 
 
 69. Privilege from arrest 60 
 
 70. Remedy for arrest of privileged persons.. 61 
 
 CHAPTER X. 
 
 MALICIOUS PROSECUTION. 
 
 71. Elements of the wrong 62 
 
 72. The malicious motive 63 
 
 73. Want of probable cause 63 
 
 74. Proceedings must have terminated 65 
 
 75. Malicious prosecution of civil actions 05 
 
 76. Malicious abuse of process 66 
 
 77. Remedy €6
 
 xii TABLE OF CONTENTS 
 
 CHAPTER XI. 
 
 DEFAMATION. 
 Section. Page. 
 
 78. Definition of defamation 68 
 
 79. The right to reputation 68 
 
 SO. Libel and slander 69 
 
 81. Slander TO 
 
 82. Slander imputing crime 70 
 
 83. Slander imputing disease 71 
 
 84. Slander affecting one in his office, profession or trade... 71 
 
 85. Slanders actionable only by reason of special damages... 72 
 
 86. Libel T2 
 
 87. Definition ''2 
 
 88. Newspapers 73 
 
 89. Publication 73 
 
 90. Construction T-l 
 
 91. Certainty 76 
 
 92. Malice 76 
 
 93. Justification 78 
 
 94. Privilege 79 
 
 95. Absolute privilege 80 
 
 96. Legislative proceedings 80 
 
 97. Judicial proceedings 80 
 
 98. Naval and military matters 81 
 
 99. Qualified privilege 82 
 
 100. Matters of public interest and concern 82 
 
 101. Communications made under duty 84 
 
 102. Communications in self-defense 85 
 
 103. The remedy • 85 
 
 104. The damages 85 
 
 CHAPTER XII. 
 
 FRAUD AND DECEIT. 
 
 105. Kinds of fraud 88 
 
 106. Frauds in confidential relations 89 
 
 107. Parties having illegal sexual relations 89 
 
 108. Trustees S9 
 
 109. Attorneys, physicians and clergymen 90 
 
 110. Persons of weak mind 91 
 
 111. Fraud and deception between equals 92 
 
 112. Definition 93 
 
 113. Fraud by silence 93 
 
 114. Equal opportunities for knowledge 94
 
 TABI^E OF CONTENTS XUl 
 
 Sectiox. Page. 
 
 115. Elements of fraud -94 
 
 116. Representations 95 
 
 117. Clearness and certainty 95 
 
 113. ^ Matter of law 96 
 
 119. ' Matter of opinion 96 
 
 120. Matters of fact 97 
 
 121. Fraudulent promises 97 
 
 122. Materiality 97 
 
 123. Falsity 98 
 
 124. Wrongdoer's knowledge 98 
 
 125. Wrongdoer's intent that the representation be acted on.. 98 
 
 126. Who entitled to rely on representations 99 
 
 127. Representation must have been acted on 99 
 
 128. Injured party's belief 100 
 
 129. Damage 100 
 
 130. The remedies 100 
 
 131. Personal injuries through fraud 101 
 
 CHAPTER XIII. 
 NUISANCE. 
 
 132. How related to negligence 102 
 
 133. Nuisance defined 103 
 
 134. "Coming to a nuisance" 105 
 
 135. The intent or motive immaterial 106 
 
 136. Care or negligence in nuisance 106 
 
 137. W^hat may be nuisances 107 
 
 138. Kinds of nuisances 108 
 
 139. Public nuisance 109 
 
 140. Private nuisance 109 
 
 141. Nuisances, both public and private 109 
 
 142. Authorized nuisances 110 
 
 143. Obstruction of highways 110 
 
 144. What is a highVay Ill 
 
 145. Purprestures HI 
 
 146. What is an obstruction 112 
 
 147. Duration of the obstruction 112 
 
 148. Objects near the highway 112 
 
 149. Authorized obstructions 113 
 
 150. The special injury 113 
 
 151. Remedies for nuisance 114 
 
 152. Evidence of nuisance 115
 
 XIV TABLE OF CONTENTS 
 
 CHAPTER XIV. 
 
 negligence. 
 
 Section. Page. 
 
 153. Actionable negligence 116 
 
 154. Contract or tort 116 
 
 155. Elements of actionable negligence 117 
 
 15G. Definition of negligence 117 
 
 157. The inadvertence 117 
 
 25S. Inevitable accident 118 
 
 159. Ordinary care under the circumstances 118 
 
 160. No degrees in negligence 119 
 
 161. Acts or omissions 119 
 
 162. Legally responsible person 120 
 
 163. Intoxication 120 
 
 164. Physical infirmity 121 
 
 165. The person to whom the duty is owing 121 
 
 166. The duty 121 
 
 1G7. The duty implied by law 122 
 
 168. The damage 122 
 
 169. Cause and effect 122 
 
 170. The legal connection 123 
 
 171. Definition of proximate cause 123 
 
 172. Plaintiff's own conduct 123 
 
 173. Plaintiff's unlawful act 124 
 
 174. Contributory negligence 125 
 
 175. Tests of contributory negligence 125 
 
 176. Plaintiff's knowledge of danger 126 
 
 177. Danger incurred to save life or in discharge of duty 126 
 
 178. Persons of defective powers 127 
 
 179. Misleading conduct 127 
 
 180. Imputable negligence 127 
 
 181. Passenger and carrier — Imputed negligence 128 
 
 182. Children — Imputed negligence 128 
 
 183. Presumptions as to negligence 129 
 
 CHAPTER XV. 
 WRONGS TO INCORPOREAL PROPERTY. 
 
 184. Incorporeal hereditaments 130 
 
 185. Other incorporeal rights 130 
 
 186. Statutory provisions 131 
 
 187. Patents 131 
 
 188. Copyrights 132 
 
 189. Literary property 132
 
 TABLE OF CONTENTS XV 
 
 Section. Page. 
 
 190. Private letters 132 
 
 191. Trade-marks and trade-names 133 
 
 CHAPTER XVI. 
 WRONGS TO PERSONAL PROPERTY. 
 
 192. Kinds of injuries 135 
 
 193. Trespass by force 135 
 
 194. Possession 135 
 
 195. The force 136 
 
 196. Conversion 136 
 
 197. Conversion by persons rightfully in possession 137 
 
 198. Demand for possession 138 
 
 199. Conversion by tenant in common 138 
 
 200. Legal process 138 
 
 20L Remedies 139 
 
 CHAPTER XVn. 
 WRONGS TO REAL PROPERTY. 
 
 202. Ownership 141 
 
 203. Dispossession 141 
 
 204. Unlawful detention 142 
 
 205. Remedies 142 
 
 206. Injuries to land without dispossession 143 
 
 207. Waste 143 
 
 208. Kinds of waste 144 
 
 209. Remedies 144 
 
 210. Nuisance affecting land 144 
 
 211. Remedies 144 
 
 212. Trespass upon land 145 
 
 213. The boundary line 145 
 
 214. Who may be a trespasser 146 
 
 215. Lawful authority 146 
 
 216. License impliedly given by the owner 146 
 
 217. Express license by the owner 147 
 
 218. Effect of statute of frauds 147 
 
 219. License by law 148 
 
 220. Legal process 148 
 
 221. Condemnation proceedings 148 
 
 222. Effect of exceeding the license 149
 
 XVI TABLE OF CONTENTS 
 
 CHAPTER XVIII. 
 
 WRONGS DONE BY ANIMALS. 
 Section. Pack. 
 
 223. Injuries by animals loU 
 
 224. Trespass upon land by animals 150 
 
 225. Duty of owner at common law 150 
 
 226. The law in the United States 151 
 
 227. Remedies 151 
 
 22S. Animals not trespassing 151 
 
 229. Owner's knowledge of danger 152 
 
 CHAPTER XIX. 
 INTERFERENCE WITH DOMESTIC AND BUSINESS RELATIONS. 
 
 230. Introductory 153 
 
 231. Enticing of servant and seduction of servant or daughter, 154 
 
 232. Interference with marital duties 154 
 
 233. Interference with contractual duties 154 
 
 234. Interference with business relations by force or threats 
 
 of force 155 
 
 235. Intentional injury to business relations constitutes a 
 
 prima facie tort 155 
 
 236. Justification for prima facie torts 156 
 
 237. Boycotting noncorapetitors 157 
 
 238. Combinations and conspiracies in competition 158 
 
 239. General strikes to secure better terms from employer... 158 
 
 240. The remedy 159 
 
 PART III. 
 CRIMINAL LAW. 
 
 CHAPTER XX. 
 CRIMINAL LAW. 
 
 241. Criminal law in general 160 
 
 242. Crimes in the United States 161 
 
 243. Capacity to commit crime 161 
 
 244. Criminal statutes, how construed 162 
 
 245. Infamous crimes 162 
 
 246. Crimes classified 162 
 
 247. Compounding 162 
 
 248. Attempts 163 
 
 249. Aiding, counseling, etc 163
 
 TAIJL.E OF CONTENTS XVU 
 
 Skction. Page. 
 
 250. Unlawful intent and overt act must unite 163 
 
 251. Criminal carelessness 164 
 
 252. Ignorance or mistake of fact 164 
 
 253. Ignorance of law 164 
 
 254. Self-defense 1^^ 
 
 256. Offenses committed by wife 165 
 
 256. Where principal liable criminally for offense of agent... 165 
 
 257. Principal and accessories 16-j 
 
 258. Drunkenness 1^^ 
 
 259. Insanity l^^ 
 
 260. Punishment 1^^ 
 
 261. Jurisdiction of crimes 167 
 
 262. Territorial jurisdiction of crimes 167 
 
 CHAPTER XXI. 
 CRIMINAL OFFENSES. 
 
 263. Criminal offenses in general 169 
 
 264. Abortion 170 
 
 265. Adultery I'^O 
 
 266. Fornication I'^O 
 
 267. Incest I'^O 
 
 268. Rape I'^O 
 
 269. Seduction 1"^! 
 
 270. Abduction and kidnaping 171 
 
 271. Bestiality— Sodomy l^'Z 
 
 272. Affray 172 
 
 273. Arson 173 
 
 274. Assault 173 
 
 275. Assault and battery 173 
 
 276. Assault with intent ". 174 
 
 277. Justification for assault 174 
 
 278. False imprisonment 174 
 
 279. Barratry, champerty and maintenance 175 
 
 280. Bigamy or polygamy 176 
 
 281. Bribery 176 
 
 282. Burglary 176 
 
 283. Robbery 171 
 
 284. Embezzlement 178 
 
 285. Larceny 179 
 
 286. Cheating — False pretenses 179 
 
 287. Conspiracy * 180 
 
 288. The agreement 180 
 
 289. Dueling 181
 
 XVIU TABLE OF CONTICNTS 
 
 Section. Page 
 
 290. Extortion ISl 
 
 291. Forgery 181 
 
 292. Homicide 1S2 
 
 293. Voluntary manslaughter 182 
 
 294. Involuntary manslaughter 183 
 
 295. Justifiable homicide 183 
 
 296. Malice 184 
 
 297. Libel 184 
 
 298. Malicious trespass or malicious mischief 185 
 
 299. Mayhem 185 
 
 300. Nuisance 185 
 
 301. Perjury 186 
 
 302. Piracy 186 
 
 303. Riot 187 
 
 304. Treason and misprision of treason 187 
 
 PART IV. 
 
 THE LAW OF PROPERTY. 
 
 CHAPTER XXn. 
 PROPERTY IN GENERAL. 
 
 305. The law of property 189 
 
 306. Basis of ownership 190 
 
 307. Origin or private ownership 191 
 
 308. Its importance 191 
 
 309. Kinds of property 192 
 
 CHAPTER XXIII. 
 REAL PROPERTY. 
 
 310. Real property 194 
 
 31L Titles in the United States 194 
 
 312. Land acquired by treaty 195 
 
 313. Indian titles 195 
 
 314. Definitions 196 
 
 315. Lands bounded by streams 197 
 
 316. Islands 198 
 
 317. Fixtures 199 
 
 318. Boundaries ; 200 
 
 319. Land bounded by highways 201 
 
 320. Appurtenances 201
 
 TABLE OF CONTENTS XIX 
 
 CHAPTER XXIV. 
 . INCORPOREAL PROPERTY. 
 
 Section. Page. 
 
 32L Kinds of incorporeal property 203 
 
 322. Advowsons 203 
 
 323. Tithes 204 
 
 324. The right of common 204 
 
 325. Right of way 205 
 
 326. Private rights of way 207 
 
 327. Temporary rights of way 207 
 
 328. Easements 208 
 
 329. Offices and dignities 209 
 
 330. Franchises 209 
 
 331. Rents 210 
 
 332. Liens 210 
 
 CHAPTER XXV. 
 THE FEUDAL SYSTEM. 
 
 333. Its origin and nature 212 
 
 334. Allodial estates 213 
 
 335. Wardship and marriage 214 
 
 336. Local courts 215 
 
 337. Homage and fealty 215 
 
 338. Military service 216 
 
 339. Other obligations of the tenant 216 
 
 340. Domesday Book , 217 
 
 341. Escuage 217 
 
 342. Changes in feudal system 217 
 
 343. Abolition of the system 218 
 
 CHAPTER XXVI. 
 
 ANCIENT TENURES. 
 
 344. Tenure 220 
 
 345. Property holden of superior 220 
 
 346. Lord paramount 220 
 
 347. Middle lords and tenant paravaile 220 
 
 348. Free and base tenure 221 
 
 349. Frank-tenement and villenage 221 
 
 350. Knight service 221 
 
 351. Aids 222 
 
 352. Relief 222 
 
 353. Primer seizin 222 
 
 354. Wardship 222
 
 XX TABLE OF CONTENTS 
 
 Section. Page. 
 
 355. Marriage 222 
 
 356. Fines 222 
 
 357. Escheat 222 
 
 CHAPTER XXVII. 
 MODERN ESTATES. 
 
 35S. Influence of feudal system 223 
 
 359. Early grants affected 224 
 
 360. Revival of allodial tenure 224 
 
 361. Sovereignty as source of title 225 
 
 362. Estates 225 
 
 363. Fee simple 225 
 
 364. Fee simple in abeyance 225 
 
 365. Use of word "heirs" 226 
 
 366. Estates for life 227 
 
 367. Rights of life tenant 227 
 
 368. Emblements 228 
 
 369. Taxes and interest 228 
 
 370. Waste 228 
 
 371. Estates for years 228 
 
 372. Rent 229 
 
 373. Duration of tenancy 230 
 
 374. Distress 231 
 
 375. Apportionment of rent 232 
 
 376. Estates at will ^ 232 
 
 377. Estates at sufferance 232 
 
 378. Base fee 232 
 
 379. Conditional fee 233 
 
 380. Estates tail and statute de donis 233 
 
 381. Tenant by the curtesy 234 
 
 382. Dower 235 
 
 383. Assignment of dower 235 
 
 384. Estates upon condition 236 
 
 385. Estates upon condition implied 236 
 
 386. Estates upon condition expressed 236 
 
 387. Conditions precedent and subsequent 236 
 
 388. Estates in remainder 238 
 
 389. Rule in Shelley's Case 239 
 
 390. Executory devises 239 
 
 391. Estates in reversion 240 
 
 392. Estates in severalty 240 
 
 393. Joint tenancy 240 
 
 394. Tenancy in common 241
 
 TABLK OF CONTENTS XXI 
 
 CHAPTER XXVIII. 
 TITLE TO REAL PROPERTY, HOW ACQUIRED. 
 
 Section. Page. 
 
 395. Ways of acquiring title 242 
 
 396. Title by occupancy 242 
 
 397. Adverse possession 243 
 
 398. Occupying claimant 244 
 
 399. Title by marriage 244 
 
 400. Title by descent 244 
 
 401. Title by devise 24.5 
 
 402. Wills 246 
 
 403. Capacity to make wills— Written wills 246 
 
 404. Revocation of wills 247 
 
 405. Title by purchase 248 
 
 406. Title bond 249 
 
 407. Deeds by owners not in possession 249 
 
 408. Forms of deeds 249 
 
 409. Registration of deeds 250 
 
 410. Parties to deeds 250 
 
 411. Deeds by officers 250 
 
 412. Description of land conveyed 251 
 
 413. Title by eminent domain 251 
 
 414. Title by escheat 253 
 
 415. Title by forfeiture 253 
 
 CHAPTER XXIX. 
 PERSONAL PROPERTY. 
 
 416. Definition 255 
 
 417. Title to— How acquired 255 
 
 418. Burial rights 256 
 
 CHAPTER XXX. 
 
 DECEDENTS' ESTATES. 
 
 419. Testator and intestate 257 
 
 420. Statutes of descent and distribution 257 
 
 421. Administrator 257 
 
 422. Executor 258
 
 xxu table; of contents 
 
 PART V. 
 
 THE LAW OF CONTRACTS. 
 
 CHAPTER XXXI. 
 DEFINITION, CLASSIFICATION AND VALIDITY OF CONTRACTS. 
 
 Section. Page. 
 
 423. The law of contracts 260 
 
 424. Growth of right to contract 261 
 
 425. Contract defined 262 
 
 426. Contracts are executory or executed 263 
 
 427. Written contracts 263 
 
 428. Parol contracts 264 
 
 429. Express contracts 264 
 
 430. Implied contracts 264 
 
 431. Quasi contracts 265 
 
 432. Contracts of record 265 
 
 433. Offer and acceptance 265 
 
 434. Time and place of contract 266 
 
 435. Legality of object of contract 267 
 
 436. Reality of consent— Mistake 268 
 
 437. Reality of consent — Fraud and misrepresentation 268 
 
 438. Reality of consent — Duress and undue influence 269 
 
 439. Void and voidable contracts 270 
 
 440. Interpretation of contracts 271 
 
 CHAPTER XXXII. 
 CAPACITY OF PARTIES TO CONTRACT. 
 
 441. Capacity of parties 272 
 
 442. Who may make valid contracts 272 
 
 443. Infants 273 
 
 444. Infant's contracts for necessaries 274 
 
 445. Ratification and disaffirmance by infants 274 
 
 446. Fraud of infants 275 
 
 447. Insane persons 275 
 
 448. Drunkenness 276 
 
 449. Married women 276 
 
 CHAPTER XXXIII. 
 CONSIDERATION, DISCHARGE AND REMEDIES. 
 
 450. Definition 278 
 
 451. Adequacy of consideration 279
 
 TABLE OF CONTENTS XXIU 
 
 Section. Page. 
 
 452. Prior obligation as consideration 280 
 
 453. Promise to release debtor 280 
 
 454. Disputed claims 280 
 
 455. Impossible and illegal consideration 281 
 
 456. Executed and executory considerations 281 
 
 457. Past consideration 281 
 
 458. Failure and want of consideration 282 
 
 459. Discharge of contracts 283 
 
 460. Remedies for breach of contract 284 
 
 CHAPTER XXXIV. 
 STATUTE OF FRAUDS. 
 
 461. History of the statute * 285 
 
 462. Provisions of the statute 286 
 
 463. Promises of executors and administrators 286 
 
 464. Debt, default and miscarriage 287 
 
 465. Original or collateral obligation 287 
 
 466. Agreements in consideration of marriage 288 
 
 467. Contracts for sale of lands 288 
 
 468. Agreements not to be performed within a year 289 
 
 469. The note or memorandum 289 
 
 470. Signature to memorandum 290 
 
 CHAPTER XXXV. 
 NEGOTIABLE INSTRUMENTS. 
 
 471. Definitions 291 
 
 472. The Negotiable Instruments Law 292 
 
 473. Origin of law merchant 292 
 
 474. Foreign and inland bills 293 
 
 475. Parties to a bill of exchange 293 
 
 476. Indorsement 293 
 
 477. Duty of the holder 294 
 
 478. Special indorsements 294 
 
 479. Signatures and date 295 
 
 480. Certainty 295 
 
 481. Surety, guarantor, indorser and assignor 295 
 
 482. Law of the place 296 
 
 483. Agents 297 
 
 484. Capacity of parties 297 
 
 485. Consideration 297 
 
 486. Purchase for value without notice 298 
 
 487. Bills of lading and checks 298
 
 XXIV TABLE OF CONTENTS 
 
 CHAPTER XXXVI. 
 CONTRACTS OF INSURANCE, 
 
 Section. Page. 
 
 48S. Definition 300 
 
 4S9. Contract, how made 300 
 
 490. How interpreted 301 
 
 491. Warranty and representation 301 
 
 492. Payment of premiums 302 
 
 493. Waiver of payment 302 
 
 494. Insurable interest 303 
 
 495. Increase of risk 303 
 
 CHAPTER XXXVII. 
 SALES AND OTHER PARTICULAR CONTRACTS. 
 
 496. Contracts of sale and exchange 304 
 
 497. Warranties 304 
 
 498. Transfer of title 306 
 
 499. Sale of goods, wares and merchandise 307 
 
 500. Delivery 308 
 
 501. Contracts of bailment 309 
 
 502. Contracts of common carriers 310 
 
 PART VI. 
 
 PARTNERSHIP AND CORPORATIONS. 
 
 CHAPTER XXXVIII. 
 PARTNERSHIP. 
 
 503. Definition 312 
 
 504. Authority and liability of partners 312 
 
 505. Formation of partnership 313 
 
 506. Rights of partners 314 
 
 507. Deeds of partners 314 
 
 508. Dissolution of partnership 314 
 
 509. Individual and partnership creditors 315 
 
 510. Rights of partners after dissolution 316 
 
 511. Limited partnership 316 
 
 512. Good will 317
 
 TABLE OF CONTENTS XXV 
 
 CHAPTER XXXIX. 
 CORPORATIONS. 
 
 Section. Page. 
 
 .513. Definition 318 
 
 514. Nature of corporations 313 
 
 515. Powers of corporations 320 
 
 516. Organization of corporations 320 
 
 517. The charter 321 
 
 518. Contracts of corporations 322 
 
 519. Rights of stockholders 323 
 
 520. Dissolution 323 
 
 521. Vested rights 323 
 
 522. Deeds of corporations 324 
 
 523. Fraud by officers of the corporation 324 
 
 524. Public service cornorations 325 
 
 PART VII. 
 
 THE LAW OF PRINCIPAL AND AGENT AND OF 
 MASTER AND SERVANT. 
 
 CHAPTER XL. 
 PRINCIPAL AND AGENT. 
 
 525. Principal and agent and master and servant in general, 327 
 
 526. Agency in general 328 
 
 527. Authority of agents in special calling 329 
 
 528. When principal is bound by act of his agent 330 
 
 529. Undisclosed principal 331 
 
 530. Duties between principals and agents 331 
 
 531. Termination of agency 332 
 
 532. Powers of attorney 333 
 
 CHAPTER XLI. 
 MASTER AND SERVANT. 
 
 533. Growth of the relation 334 
 
 534. Apprentices 335 
 
 535. Who is a master or servant 335 
 
 536. Independent contractor 336 
 
 537. The contract between master and servant 336 
 
 538. Termination of the relation 337 
 
 539. Discharge by the master 337
 
 XXvi TABLE OF CONTENTS 
 
 Section. Page. 
 
 540. Abandonment by the servant 337 
 
 541. Wrongs independent of contract 338 
 
 542. Liability of third persons to the master 338 
 
 543. Liability of third persons to the servant 339 
 
 544. Master's liability for injury to others 339 
 
 545. Intentional and unintentional injuries 339 
 
 546. Servant's liability for injuries to others 340 
 
 547. Master's liability to the servant 340 
 
 548. Duties of master to servant 340 
 
 549. Risks assumed by servant 341 
 
 550. Fellow servants 341 
 
 551. Vice principal 341 
 
 552. Servant's liability to master 342 
 
 PART VIII. 
 
 THE LAW OF PERSONS AND DOMESTIC RELATIONS. 
 
 CHAPTER XLIL 
 HUSBAND AND WIFE. 
 
 553. The law of persons and domestic relations 343 
 
 554. Right to marry 344 
 
 555. Fraud between parties engaged to be married 344 
 
 556. Marriage 345 
 
 557. Illegal marriage 345 
 
 558. Marriage ceremony 346 
 
 559. Foreign marriages 346 
 
 560. Duties and rights of husband and wife 346 
 
 561. Divorce 347 
 
 562. Injuries between husband and wife 348 
 
 563. Fraud between husband and wife 348 
 
 564. Injuries by third person 349 
 
 CHAPTER XLIII. 
 PARENT AND CHILD. 
 
 565. Legitimacy 351 
 
 566. Rights and duties of parent and child 352 
 
 567. Wrongs as between parent and child 353 
 
 568. Fraud between parent and child 353 
 
 569. Wrongs by third persons 353 
 
 570. Child's interest in the parent 354
 
 TABLE OF CONTENTS XXVll 
 
 Section. Page. 
 
 571. Parent's interest in the child 354 
 
 572. Physical injuries to the child 354 
 
 573. Enticing away the child 355 
 
 574. Seduction 355 
 
 CHAPTER XLIV. 
 GUARDIAN AND WARD. 
 
 575. Kinds of guardianship 357 
 
 576. Natural guardian 357 
 
 577. Testamentary guardian 358 
 
 578. Legal guardian 358 
 
 579. Guardian's deeds 359 
 
 580. Guardian ad litem 359 
 
 581. Next friend 359 
 
 582. Rights of guardian and ward in each other 360 
 
 583. Wrongs between guardian and ward 360 
 
 584. Guardian of the insane 360 
 
 PART IX. 
 PUBLIC LAW. 
 
 CHAPTER XLV. 
 CONSTITUTIONAL, LAW IN GENERAL. • 
 
 585. Public law in general 362 
 
 586. Constitutional law in general 362 
 
 587. The American doctrine of constitutional law 364 
 
 588. Legal importance of the American doctrine of constitu- 
 
 tional law 365 
 
 589. Arrangement of the subject 365 
 
 590. The separation of powers 366 
 
 CHAPTER XLVL 
 FUNDAMENTAL CONSTITUTIONAL RIGHTS. 
 
 591. Fundamental constitutional rights 367 
 
 592. Citizenship and naturalization 367 
 
 593. Suffrage 369 
 
 594. Freedom of speech and of the press 370 
 
 595. The right to assemble 870
 
 XXVlll TABLE OF CONTENTS 
 
 Section. Page. 
 
 596. The right to bear arms 371 
 
 597. Religious liberty 371 
 
 598. Protection to persons accused of crime 371 
 
 599. Due process of the law and equal protection of the laws 
 
 in regard to procedure 373 
 
 600. Due process and equal protection of the laws in regard 
 
 to the police power 374 
 
 601. Due process of law and equal protection of the law in 
 
 regard to taxation 375 
 
 602. Due process and equal protection of law in regard to 
 
 eminent domain 376 
 
 602. Laws impairing the obligation of contracts 377 
 
 CHAPTER XLVII. 
 FEDERAL GOVERNMENT. 
 
 604. Federal powers and their exercise 379 
 
 605. Territories, dependencies and new states 380 
 
 606. Interstate commerce 381 
 
 607. State regulation and taxation affecting interstate com- 
 
 merce 381 
 
 60S. Federal treaty-making power 382 
 
 609. Interstate privileges and immunities and other inter- 
 
 state relations 383 
 
 610. Relations between state and federal government 384 
 
 CHAPTER XLVIII. 
 ADMINISTRATIVI> LAW. 
 
 611. Administrative law in general 385 
 
 612. Liability of officers to suits for damages 386 
 
 613. Liability of legislative officers 387 
 
 614. Liability of executive and administrative officers 387 
 
 615. Liability of judicial officers 388 
 
 616. Mandamus 390 
 
 617. Nature of the action 390 
 
 618. Quo warranto 391 
 
 619. How obtained 391 
 
 620. Prohibition 392 
 
 621 . Habeas corpus 392 
 
 622. What application must show — Return 392 
 
 623. When legality of restraint will not be inquired into 393 
 
 624. Certiorari 393
 
 TABLE OF CONTENTS XXIX 
 
 CHAPTER XLIX. 
 INTERNATIONAL LAW. 
 
 Section. Page. 
 
 625. Definition 395 
 
 626. Jurisdiction over foreign ambassadors, etc 396 
 
 627. Neutrality 397 
 
 628. When war exists 397 
 
 PART X. 
 COURTS, REMEDIES AND PROCEDURE. 
 
 CHAPTER L. 
 COURTS IN GENERAL. 
 
 629. Courts and ttieir jurisdiction 39S 
 
 630. Jurisdiction defined 399 
 
 631. Federal courts 399 
 
 632. The senate as a court 400 
 
 633. Judicial circuits and districts 400 
 
 634. Judicial power of the United States 400 
 
 635. Exclusive jurisdiction of federal courts 401 
 
 636. Concurrent jurisdiction of federal and state courts 401 
 
 637. Jurisdiction of the Supreme Court of the United States.. 402 
 
 638. Jurisdiction of the circuit courts of appeals 404 
 
 639. Jurisdiction of the district courts 404 
 
 640. The court of customs appeals 405 
 
 641. Jurisdiction of the court of claims 405 
 
 642. United States commissioners 406 
 
 643. Courts of the territories and of the District of Columbia, 406 
 
 644. State courts 406 
 
 645. Jurisdiction of state courts 406 
 
 CHAPTER LI. 
 EQUITY COURTS. 
 
 646. Equity jurisdiction 408 
 
 647. Injunction — Prohibitory and mandatory 409 
 
 648. General scope of equity jurisdiction 409 
 
 649. A court of equity having obtained jurisdiction will ad- 
 
 minister full relief 410 
 
 650. Suit in equity — How commenced — Pleadings 410 
 
 65L Evidence on hearing 411
 
 XXX: TABI.E; OF CONTENTS 
 
 CHAPTER LII. 
 
 admiralty law and procedure. 
 Section. Page. 
 
 652. Origin and history 413 
 
 653. Admiralty jurisdiction 413 
 
 654. Admiralty procedure 415 
 
 CHAPTER LHI. 
 
 CIVIL PROCEDURE. 
 
 655. Scope of chapter , 417 
 
 656. Civil actions — Courts — Their officers — Juries 418 
 
 657. Actions, how commenced — Parties 418 
 
 658. The process 418 
 
 659. How served and returned 419 
 
 660. Matters of defense 419 
 
 661. Objection to jurisdiction, how and when made 420 
 
 662. Answers or pleas in abatement 420 
 
 663. Issues of fact and issues of law 421 
 
 664. The jury 421 
 
 665. Trial 422 
 
 666. Evidence 422 
 
 667. Functions of court and jury as to evidence 424 
 
 668. Things which need not be proved, or of which courts 
 
 take judicial notice 424 
 
 669. Written and oral evidence 424 
 
 670. Attendance of witnesses, how procured 425 
 
 671. Competency of witnesses 425 
 
 672. Hearsay evidence 426 
 
 673. Exceptions to the rule excluding hearsay evidence 426 
 
 674. Examination of witnesses 427 
 
 675. Burden of proof 427 
 
 676. Arguments of counsel and instructions of the court 428 
 
 677. Deliberations of jury and verdict 428 
 
 678. Motion to set verdict aside and for a new trial 429 
 
 679. Motion in arrest of judgment 429 
 
 680. Forms of judgments 430 
 
 681. Appeals and writs of error 430 
 
 682. Execution 431 
 
 CHAPTER LIV. 
 
 SPECIAL PROCEEDINGS. 
 
 683. Contempt 432 
 
 684. Direct and indirect or constructive contempt 433
 
 TABLE OF CONTENTS XXXI 
 
 Section. Page. 
 
 685. Attachment ^33 
 
 686. How writ served 434 
 
 687. Garnishment 'i"'* 
 
 688. Capias 435 
 
 689. Arbitration 435 
 
 690. Accord and satisfaction 436 
 
 691. Partition 436 
 
 CHAPTER LV. 
 CRIMINAL, PROCEDURE. 
 
 692. Arrest 439 
 
 693. Warrant for arrest 439 
 
 694. When warrant void and when valid 440 
 
 695. Arrest by officer without warrant 441 
 
 696. Arrest by private person 441 
 
 697. Arrest upon hue and cry 442 
 
 698. What an officer may do in serving warrant and making 
 
 arrest 442 
 
 699. Extradition 442 
 
 700. Examinations, bail, etc 443 
 
 701. Right to speedy trial— presence of accused in court 444 
 
 702. Right of prisoner to have counsel 444 
 
 703. Change of venue 445 
 
 704. Application for continuance 445 
 
 705. Indictment — Information 446 
 
 706. Pleas to indictment 447 
 
 707. Arraignment 447 
 
 708. Jury impaneling 447 
 
 709. Opening statements of counsel 448 
 
 710. Examination of witnesses 448 
 
 711. Rules of evidence 449 
 
 712. Special rules of evidence in criminal cases 450 
 
 713. Final arguments of counsel 451 
 
 714. Conduct of jury— Verdict 451 
 
 'ri5. Motion for new trial— Arrest of judgment— Execution. . . 452
 
 ELEMENTARY LAW 
 
 PART I 
 
 NATURE AND SOURCES OF THE LAW 
 
 CHAPTER I 
 DEFINITION AND NATURE OF THE LAW 
 
 Sec. Sec. 
 
 1. Definition of law in general. 9. The right to life. 
 
 2. Law in the abstract sense. 10. The right of personal lib- 
 
 3. Legal rights and duties. erty. 
 
 4. Liberties. 11. Habeas corpus. 
 
 5. Powers. 12. Right to health. 
 
 6. Moral rights and duties. 13. Right to reputation. 
 
 7. Scope of legal right. 14. Right to property. 
 
 8. The right of personal se- 15. The administration of jus- 
 
 curity. tice. 
 
 • 
 
 § 1. Definition of law in general. — In its broadest 
 sense, law is a rule of action. The term is applied 
 indiscriminately to all kinds of action and includes the 
 physical laws of nature as well as the human laws of 
 society. The laws of nature are rules of action in the 
 physical world of matter and force and are formu- 
 lated and studied in the sciences of Astronomy, Geol- 
 ogy, Physics, Chemistry and Biology. The laws of 
 society are rules of human activity and conduct, and 
 their study is embraced in the sciences of Sociology, 
 History, Ethics, Religion, Economics, Political Gov- 
 ernment, and Jurisprudence. 
 1 — Elem. Law. \
 
 2 ELEMENTARY LAW [§ 1 
 
 The laws of nature are eternal and unchangeable 
 principles of action inherent in matter and force, in 
 accordance with which physical changes actually and 
 invariably occur. The law of gravitation is a rule in 
 accordance with which all physical bodies attract each 
 other. The laws of chemical attraction are rules in 
 accordance with which atoms unite to form molecules. 
 Such physical laws have always existed, apart from 
 the human intellect, and have merely been discovered 
 and formulated by scientists. Human laws, however, 
 have their origin in the human intellect and are the 
 rules, conditions and restrictions under which men, 
 naturally independent, unite themselves in society for 
 their mutual welfare. They are an outgrowth of the 
 habits, manners, customs and usages of society and 
 exist in the family, the clan, and the tribe, as well as 
 in the city, state and nation. A few simple and prac- 
 tical rules formulated by a chieftain and perpetuated 
 by oral tradition may constitute the law of a wander- 
 ing tribe of savages or nomadic shepherds, but as 
 civilization becomes complicated by commerce, agri- 
 culture, and the arts, the law must become complex 
 and voluminous. Human laws are the product of evo- 
 lution, growth and development. 
 
 The lav/ of the state is defined by Justinian in the 
 Institutes thus: Law^ is a sacred sanction commanding 
 what is honest and prohibiting the contrary. Cicero 
 defines it as a legal sanction, implying a penalty for 
 enforcing obedience, rather than a sacred sanction. In 
 modern jurisprudence, the following general definitions 
 have been approved by the courts: Law is a rule of 
 action prescribed by competent authority. Law is a 
 rule of civil conduct prescribed by the supreme power 
 in a state. 
 
 In America this supreme power rests in the peo-
 
 § 2] DEFINITION AND NATURE OF THE LAW 3 
 
 pie, under a written constitution, formulated by their 
 representatives. Its preamble reads, "We the people 
 of the United States, * * * do ordain and establish 
 this Constitution." It emanates from the people, the 
 depository, and the only one, of all political power; it 
 is therefore the supreme law of the land, the ele- 
 mentary law of the nation; and a thorough study of 
 its provisions, its preamble and its amendments is es- 
 sential to an understanding of the nature and sources 
 of American law. 
 
 § 2. Law in the abstract sense. — Law in the con- 
 crete sense is most frequently used as synonymous with 
 statute. Thus the acts of a state legislature are gen- 
 erally referred to as the law of the state. It is quite 
 common to refer to a federal statute as a law of Con- 
 gress. Law in the abstract, however, refers to the 
 legal rules and principles observed by the courts. Pro- 
 fessor Gray of the Harvard Law School defines the 
 law of the state as that body of rules and principles 
 observed by the courts in the determination of legal 
 rights and duties. In other words, the law is what the 
 court, in the performance of its judicial functions, de- 
 termines to be the law. Under our legal and govern- 
 mental system, the courts construe, interpret, and ap- 
 ply the law, and from their determination there is no 
 appeal. It is the rule and construction of the court 
 which the administration must enforce, and to which 
 the public must conform. Under a system of separa- 
 tion of powers between the legislative, executive, and 
 judicial departments of government, in which the pow- 
 ers of legal exposition and interpretation are the ex- 
 clusive functions of the judiciary, the rules and princi- 
 ples followed by the courts must of necessity be the 
 law. Their construction is the final test and determi-
 
 4 ELEAIIiNTARY LAW [§ 2 
 
 nation of what the law is. This does not mean that 
 the courts are free to lay down rules and principles 
 according to their individual sense of justice, for the 
 state directs them to legal sources from which the 
 great bulk of their rules and principles are evolved, 
 and which the courts are under the most solemn obli- 
 gations to observe and respect. 
 
 In the abstract sense the statutes enacted by the 
 legislature constitute merely one of the sources of the 
 law and not a part of it. If the statutes interpreted 
 and applied themselves, then they would indeed be in 
 fact a portion of the law. But since the statutes do 
 not generally interpret themselves, their meaning must 
 be determined by the courts, and in strictness, it is the 
 meaning so determined and no other that is the law. 
 As above indicated, the courts are bound by solemn 
 obligations to observe the legal sources, which in the 
 case of statutes would mean to give to the statute the 
 meaning intended by its framers, notwithstanding, 
 however, it is the meaning of the statute as finally 
 determined by the court that constitutes a part of the 
 law of the state. 
 
 It is important to bear in mind this definition of the 
 law in order that there may be no confusion between 
 legal rules on the one hand and rules of ethics, politics, 
 and philosophy on the other. In times past this con- 
 fusion has been too common. Many definitions of the 
 law of the state have included the elements of the 
 "good and equitable," the "dictates of reason," the 
 "abstract expression of the general will," or the will 
 of the monarch or ruling body. Obviously all such 
 definitions are incorrect and misleading; .they tend to 
 confuse law with ethics and philosophy. If the highest 
 courts declare a certain rule to be the law, it is in fact 
 the law regardless of whether it is "good and equit-
 
 § 4] DEFINITION AND NATURIJ OF THE LAW 5 
 
 able," or the "dictate of reason," or the "abstract ex- 
 pression of the general will," or the wish of the mon- 
 arch or ruling body. 
 
 § 3. Legal rights and duties. — The ultimate pur- 
 pose of the law is the maintenance of order and jus- 
 tice. This is secured by creating legal rights and 
 duties which are enforced or recognized by the state. 
 Rights and duties are correlative. One can not exist 
 without the other. There can be no right in one 
 person without a corresponding duty in one or more 
 other persons to respect that right. A has a right to 
 his life. Then all other persons are under legal duty 
 to respect that right. If A makes a valid contract 
 with B in which he agrees to pay him one hundred 
 dollars for B's spotted cow and the cow is properly 
 delivered, then B.has a right to receive one hundred 
 dollars, and it is the duty of A to pay it. The state 
 has the right to have the public peace undisturbed. 
 This means the public are under obligations to do 
 nothing that will disturb the public peace. If one com- 
 mits murder or engages in a fight he violates this duty 
 and will be punished by the state. 
 
 § 4. Liberties. — In certain cases the term right is 
 used in a broader meaning than the one here dis- 
 cussed, and includes not only the strict legal rights 
 that are correlative to duties, but also liberties and 
 powers. A liberty is the freedom to do a certain 
 thing. It is recognized and allowed by law, but not 
 protected by a corresponding legal duty. Thus the 
 right to destroy my own property is a liberty in that 
 the law will permit it and it is not wrong for others 
 to prevent me, so long as the prevention does not 
 violate some strict legal right. The right of one to
 
 6 ELEMENTARY LAW [§ 5 
 
 raise flowers on his land is another example of a 
 liberty, for the law will permit it, and yet it will not 
 punish one who prevents it by so constructing a 
 building upon his adjoining land as to cut off the 
 afternoon sun, thus causing the flowers to wither and 
 die. It is not a strict legal right, for there is no legal 
 duty to correspond. In short, liberties are those things 
 which the law permits but does not protect. There 
 are many of these liberties, and some of them receive 
 indirect protection as incidental to the protection of 
 strict legal rights. Thus if one interferes with me in 
 the destruction of my property, which is a liberty, it 
 will be difificult for him to do so without seizing my 
 person, trespassing upon my property or invading 
 some other strict legal right, for the violation of which 
 the law will afford redress. 
 
 § 5. Powers. — A power is the ability or capacity 
 conferred on one by law to determine legal relation- 
 ships. Examples are the right to make a will, the 
 right to alienate one's property, the right to bring 
 suit in a court of law and the various powers vested 
 in public officers. The right to make a will is not a 
 right in its strict sense, for there is no duty that is 
 correlative. It is merely the capacity to determine 
 the ownership of the property after the owner's death. 
 Powers are either public or private. They are public 
 when they are exercised by persons as agents of the 
 state, and they are private when vested in persons 
 to be used for their own private purposes. In cre- 
 ating liberties the law provides individuals with cer- 
 tain recognized spheres of unrestrained activity, and 
 in creating powers it gives to them authority or 
 capacity to create or alter legal relationships. Thus 
 the relationships between individuals and between in-
 
 § 7] DEFINITION AND NATURE OF THE IvAW 7 
 
 dividuals and the state are regulated through the cre- 
 ation of strict legal rights, duties, liberties and powers, 
 determined and enforced or recognized by the authori- 
 ties of the state. 
 
 § 6. Moral rights and duties. — Care must be 
 taken to distinguish between legal rights and duties 
 and moral rights and duties. While it is believed and 
 hoped that there is a close agreement between the 
 two, there is no necessary relationship. The two are 
 separate and distinct, the latter belonging wholly to 
 the realm of ethics or religion, with which we are not 
 here directly concerned. It may be one's moral duty 
 to give his starving neighbor food, but one is under 
 no legal obligation to do so and the neighbor has no 
 legal right. This is but one of the many relationships 
 for which the state has established no legal obligation. 
 As Professor Amos says: "A man may be a bad 
 husband, a bad father, a bad guardian, without violat- 
 ing a law. He may be an extortionate landlord, a 
 wasteful tenant, a hard dealer, an unreliable trades- 
 man, and law can not touch him. He may be a ras- 
 cally politician, a demagogue, an indolent aristocrat, 
 and yet satisfy to the utmost the claims of the law." 
 
 A right resting upon the law of the state can be 
 enforced or vindicated by a court, and such a right 
 implies a legal obligation to do or forbear. A right 
 resting upon moral or social laws may be valuable 
 and its transgression may cause pain, suffering and 
 discomfort, but it can not be enforced or vindicated 
 by a court or by any positive sanction. It is the 
 province of courts and lawyers to deal with rights of 
 legal obligation alone. 
 
 § 7. Scope of legal right. — As above indicated, the
 
 8 ElvEMEINTARY LAW [§ 8 
 
 law does not enforce every moral duty or protect 
 every moral right. It is thought unwise for the state 
 to interfere too minutely with the affairs of its citi- 
 zens, and the policy of the law is to recognize only 
 such rights and duties as experience seems to show 
 that the necessities of the public welfare require. In 
 order that the reader may at the beginning get some 
 idea of the nature and scope of the rights protected 
 by the law, a brief summary of some of the more 
 fundamental legal rights is given in the succeeding sec- 
 tions. 
 
 § 8. The right of personal security. — The right of 
 personal security is the most important of all rights 
 and it consists in a person's legal and uninterrupted 
 enjoyment, (a) of the right to life, (b) of the right 
 to limbs, body, etc., (c) right to the preservation of 
 health, (d) the right to one's reputation, (e) the right 
 of free speech and locomotion. 
 
 § 9. The right to life. — The right to life begins 
 with the first pulsations in the unborn child. It is 
 everywhere a moral wrong, and in most civilized 
 countries it is a legal wrong to destroy human life, 
 even in its first manifestations. The right to life im- 
 plies the right to preserve it, and from this springs 
 the right of self-defense, a right recognized by the 
 law. Besides the right of the individual to repel a 
 deadly assault by taking the life of his assailant, soci- 
 ety has the right to punish with death any one who 
 unlawfully takes the life of another. Blackstone and 
 the earlier writers base the moral right of capital 
 punishment upon the Mosaic law, but the better view 
 now is that it has always rested upon grounds of pub- 
 lic policy and can only be justified when and because
 
 § 11] DEFINITION AND NATURE OF THE LAW 9 
 
 it is necessary for the preservation and security of 
 society. 
 
 § 10. The right of personal liberty. — The right of 
 personal liberty is secured by that provision of the 
 Constitution w^hich declares that "No person * * * 
 shall be deprived of life, liberty or property without 
 due process of law." "The meaning of this is," as 
 Webster said in his speech in the Dartmouth College 
 case, "that every citizen shall hold his life, liberty, 
 property and immunities under the protection of gen- 
 eral rules which govern society." This term "liberty" 
 is, as has been said, a negative term denoting the 
 absence of restraint. But it is more — it implies the 
 right to think, to speak, to act individually or with 
 others, to labor for one's support without molestation 
 from others; it means the right to the full exercise 
 of one's faculties in lawful ways. Civil liberty, which 
 is here meant, is liberty restrained so far as is neces- 
 sary for the common good. Any interference with 
 such liberty is a legal wrong. 
 
 § 11. Habeas corpus. — To prevent unlawful inva- 
 sions of the right to liberty the English habeas corpus 
 act of the year 1679 has been re-enacted generally in 
 the American States. The writ is an order of court 
 directed to a person detaining another, commanding 
 him to produce the body of the prisoner before the 
 court or judge, to determine the legality of his com- 
 mitment. To further secure the right the Constitution 
 of the United States declares that "The privilege of 
 the writ of habeas corpus shall not be suspended unless 
 when in case of rebellion or invasion the public safety 
 may require it." The writ lies for the liberation of a 
 prisoner held for an act which does not constitute any
 
 10 ELICMENTARY LAW [§ 12 
 
 offense known to the law, or a prisoner sentenced by a 
 court without jurisdiction, or detained in prison after 
 a pardon has been granted. The law also gives one 
 who is unlawfully restrained of his liberty a civil ac- 
 tion against the wrongdoer. 
 
 § 12. Right to health. — The right to the preserva- 
 tion and enjoyment of health is protected and enforced 
 by suitable laws. No one has the right to do any- 
 thing which will impair the health of another. To 
 create or maintain a nuisance by carrying on a 
 noisome trade in a thickly populated neighborhood, 
 to the discomfort of, or to the injury of the health of 
 the citizens, would, where the wrong was sufhcient to 
 amount to a public nuisance, be punished by the crim- 
 inal law, and if the injury is confined to one or only 
 a few of the citizens, they have a right of action in 
 which damages for the injury may be recovered from 
 one who creates or maintains the nuisance, and in a 
 proper case the courts will interfere by injunction and 
 prohibit its continuance. 
 
 Various statutory and constitutional provisions ex- 
 ist in the different states for the establishment of local 
 boards of health, which have broad administrative and 
 executive functions. Among the principal laws and 
 ordinances pertaining to health are those concerning 
 the quarantine of contagious diseases, the disinfection 
 of exposed property, the vaccination of school children 
 and adults to prevent epidemics, the maintenance of 
 public hospitals, and the suppression of nuisances and 
 offensive occupations. 
 
 § 13. Right to reputation. — The right to one's rep- 
 utation is protected and enforced by the laws on the 
 subject of libel and slander and malicious prosecution.
 
 § 14] DEFINITION AND NATURE OF THE LAW 11 
 
 To write and publish anything of another which is 
 false, and which either charges a crime or holds one 
 up to public scorn or ridicule, is libelous, and subjects 
 the author to an action for damages, and in many 
 states to a criminal prosecution also. To say falsely 
 of a man that he has been guilty of a crime which 
 would subject him to infamous punishment, or to say 
 falsely of a woman that she is unchaste, is slander, 
 and the injured party may recover damages of the 
 offender in a civil action. To charge a man falsely 
 before a magistrate with the commission of a crime 
 with malice and without probable cause is malicious 
 prosecution for which in a proper case damages will 
 be awarded to the injured party. 
 
 § 14. Right to property. — The right of property 
 is secured by the fifth amendment to the Constitution 
 of the United States which provides that: "No per- 
 son shall be deprived of life, liberty or property with- 
 out due process of law," and by the fourteenth amend- 
 ment, which provides that: "No state shall make or 
 enforce any law which shall abridge the privileges or 
 immunities of citizens of the United States, nor shall 
 any state deprive any person of life, liberty or prop- 
 erty without due process of law, nor deny to any 
 person within its jurisdiction the equal protection of 
 the laws." 
 
 The right of property is the right of dominion, 
 ownership, possession. Law writers have different 
 theories of the origin of this right. Blackstone says, 
 "The earth and all things therein were the general 
 property of mankind from the immediate gift of the 
 Creator. * * * gy ^.j^^ j^^ ^f nature and reason, 
 he who first began to use it (property) acquired 
 therein a kind of transient property that lasted as
 
 12 El^EMENTARY 1,AW [§15 
 
 long as he was using it and no longer; or to speak 
 with greater precision, the right of possession con- 
 tinued for the same time only that the act of posses- 
 sion lasted. Thus the ground was in common and 
 no part was the permanent property of any man in 
 particular; yet whoever was in the occupation of any 
 determined spot of it for rest, or shade, or the like, 
 acquired for the time a sort of ownership, from 
 which it would have been unjust and contrary to the 
 law of nature to have driven him by force, but the 
 instant that he quitted the use or occupancy of it, 
 another might seize it without injustice." Today all 
 the important interests in property are recognized as 
 legal rights, a large portion of our law having to do 
 with this important subject. The complex law of real 
 and personal property as it exists today, embracing 
 over half of the volume of the law, is but an elaborate 
 recognition and enforcement of the rights of persons 
 in tangible things, 
 
 § 15. The administration of justice. — The admin- 
 istration of justice according to law is the enforce- 
 ment, recognition or protection of legal rights 
 through the physical power of the state. Justice and 
 order can not be established through the mere cre- 
 ation and definition of legal rights and duties. Peo- 
 ple frequently disagree as to what their rights and 
 duties are, and courts of law are necessary to deter- 
 mine such disagreements in each specific case. But 
 this is insufficient, for many people will not perform 
 their duties or recognize the rights of others though 
 they be clearly understood. The rewards of law vio- 
 lators are frequently great and nothing save the physi- 
 cal power of the state can effectually restrain them. 
 In applying this power several kinds of legal proceed-
 
 § ]5j DEFINITION AND NATURIi OF Tllli I,AW 13 
 
 ings or remedies have been developed. The most com- 
 mon of these proceedings or remedies fall into four 
 general classes, which may be designated as prevent- 
 ive, compulsory, compensatory and punitive proceed- 
 ings, respectively. 
 
 The most common example of the first is the in- 
 junction. If under certain conditions one's property 
 rights are threatened with irreparable damage the 
 courts will enjoin the offending party from doing that 
 which endangers the property, and if the injunction 
 is not strictly observed, the offender may be fined 
 or cast into jail by the order of the court. 
 
 The most common example of compulsory proceed- 
 ings is the decree of specific performance in which, 
 under certain conditions, the courts will compel a man 
 to live up to his contractual obligations or put him in 
 jail for contempt until he does. If A agrees for a 
 price to convey to B his forty-acre farm, but later re- 
 fuses to convey the farm, B may secure a decree of 
 specific performance against him and A will be com- 
 pelled to convey or go to jail. Another example is 
 what is known as the action of replevin, whereby 
 goods unlawfully detained by another may be recov- 
 ered by the owner. 
 
 Compensatory proceedings are generally suits 
 brought to recover damages by way of compensation 
 for injuries resulting from the violation of legal 
 rights. Thus if A refuses to convey his forty-acre 
 farm to B according to their contract, instead of secur- 
 ing a decree of specific performance, B may, if he 
 wishes, bring suit for damages, and the court will 
 compel A to pay an amount of damages equal to the 
 loss which B has sustained by reason of A's refusal 
 to perform his duty. If the damages are not paid the 
 officers of the court will seize A's property and sell it
 
 14 ELEMENTARY LAW [§ 15 
 
 to pay the damages. Likewise, if X wrongfully de- 
 stroys property belonging to Y the latter may bring 
 suit for damages and X will be compelled to pay Y 
 enough money to compensate him for his loss. Num- 
 berless other examples might be cited where persons 
 may be compelled to make due reparation through the 
 payment of damages for injuries resulting from their 
 failure to perform their legal duties or to properly re- 
 spect the rights of others. 
 
 Punitive proceedings are generally known as crim- 
 inal prosecutions and are brought by the state to 
 punish persons who have violated certain commands 
 of the state. The state has a right to have these 
 commands obeyed. The primary object here is not 
 to compel the guilty one to make reparation for the 
 injury his wrongful act has done, but to punish him 
 for the wrong and to deter others from committing 
 like offenses. When a person commits murder, rob- 
 bery, arson or other crime he may be prosecuted, and 
 if convicted he may be punished by being executed, 
 imprisoned or fined, depending upon the penalty in 
 each case. The main purpose of such punitive pro- 
 ceedings is to prevent the violation of the criminal 
 laws of the state. The theory is that the penalties 
 are so severe that the self-interest of the individual 
 will cause him to observe rather than to violate the 
 
 law. 
 
 In addition to the proceedings or remedies here 
 discussed there are others not quite so common, 
 known as the extraordinary legal remedies, which 
 will be discussed in a later chapter. However, it is 
 mainly through the four classes of proceedings above 
 discussed that the physical force of the state is in- 
 voked in the protection and enforcement of legal 
 rights and duties.
 
 Sec. 
 
 
 Sec. 
 
 16. 
 
 Written and unwritten 
 laws. 
 
 20. 
 
 17. 
 
 Kinds of written law in 
 the United States. 
 
 21. 
 
 18. 
 
 The unwritten or common 
 law. 
 
 22. 
 
 19. 
 
 Historical and legal sources 
 of the law. 
 
 
 CHAPTER II 
 KINDS AND SOURCES OF LAW IN THE UNITED STATES 
 
 Historical sources of the 
 
 common law. 
 Growth of the common 
 
 law. 
 Common law in the United 
 
 States. 
 
 § 16. Written and unwritten laws. — It is to be 
 noticed that this distinction between written and un- 
 written law is an attempt to classify the law accord- 
 ing to its sources. All the rules and principles which 
 have their source in formally enacted law, such as 
 statutes and written constitutions, constitute that 
 part of the law known as the written law, while the 
 sum of the remaining rules and principles compose 
 the body of the unwritten law. In actual practice 
 the term written law is rarely used, it being spoken 
 of as statutes or legislation and constitutions, as the 
 case may be, while the unwritten law is more usually 
 referred to as the common law. 
 
 § 17. Kinds of written law in the United States. — 
 Owing to the peculiar form of our government, our 
 written laws are of different dignity and authority. 
 Our national constitution declares that: "This Consti- 
 tution, and the laws of the United States which shall 
 be made in pursuance thereof, and all treaties made, 
 or which shall be made, under the authority of the 
 
 15
 
 16 ELEMENTARY LAW [§18 
 
 United States, shall be the supreme law of the land; 
 and the judges in every state shall be bound thereby, 
 any thing in the Constitution or laws of any state to 
 the contrary notwithstanding." Next in dignity and 
 authority are the written constitutions of the several 
 states and the acts of the legislatures of the states 
 respectively; to these may be added the ordinances 
 of cities and towns. These constitutions, treaties, 
 acts of congress and acts of the legislature, and ordi- 
 nances, as interpreted and administered by Hie courts, 
 constitute the written law which governs the people 
 of the United States. 
 
 § 18. The unwritten or common law. — We have 
 now to speak of the unwritten or common law. The 
 phrase common law is here used in contradistinction 
 to statute law and law as contained in written con- 
 stitutions, although it may also be appropriately used 
 in contradistinction to the civil or canon law, ad- 
 miralty and maritime jurisprudence, and very often 
 to equity. In the sense here used it is an unwritten 
 law, which receives its binding force from immemorial 
 usage and universal reception, or judicial precedent, 
 in distinction from written or statute law. Its rules 
 or principles are to be found in the text-books written 
 by men learned in the law, in the records of the courts 
 and in the reports of judicial decisions. As a rule of 
 civil conduct it is of binding obligation upon all until 
 it is modified or overruled by statute law. 
 
 The common law varies in different states. While 
 based on the same legal system, it is administered 
 and developed in many different states by as many 
 different courts. That certain differences should de- 
 velop is therefore inevitable. The United States as 
 a nation has no common or unwritten law. The
 
 § 19] KINDS AND SOURCES OF LAW IN THE U. S. 17 
 
 national or federal courts administer the common 
 law as they find it to exist in the states respectively. 
 The law of Louisiana, however, is not the common 
 law, but is based upon the principles of the civil law 
 which came to Louisiana from France. The law of 
 most of the other states finds its source in the com- 
 mon law as it was established and administered in 
 England and her colonies and such statutes as were 
 applicable thereto at the time of the separation, and 
 in the judicial precedents and established customs of 
 the state. 
 
 § 19. Historical and legal sources of the law. — 
 
 The sources of the law supply the substance of the 
 rules and principles which the courts lay down in 
 the performance of their judicial functions. These 
 sources are either legal or historical. Legal sources 
 are those recognized by the rules of law and which 
 it is the solemn duty of the courts scrupulously to 
 observe. Thus statutes are legal sources, for it is a 
 rule of law that in the determination of judicial con- 
 troversies the courts must have resort to any legisla- 
 tion that is applicable to the pending controversy. 
 Historical sources are those from which the ideas 
 originate which later become embodied in the law 
 through the legal sources. For instance, a statute 
 prohibits murder. The legal source of that portion of 
 the law is the statute, while the historical source may 
 be the Biblical commandment, **Thou shalt not kill," 
 or any other source from which the framers of the 
 statute received the idea of prohibiting such an act. 
 It is important to carefully distinguish between the 
 legal and historical sources of the law, since it is 
 only through the legal sources that principles find 
 entrance into the law of the state. The legal sources 
 2 — Elem. Law.
 
 18 EI^EMENTARY LAW [§20 
 
 of the law are statutes, custom and precedent, which 
 will be discussed in succeeding chapters. 
 
 § 20. Historical sources of the common law. — 
 The historical sources of the common law have been 
 said to be undiscoverable. It is the sum of innumer- 
 able accretions from ancient customs and usages 
 which began among the people of England, which 
 customs are sometimes designated as the "ancient 
 Saxon privileges," or the bod}^ of laws framed by- 
 Alfred the Great and reaffirmed by Edward the Con- 
 fessor. In making this compilation, Alfred drew upon 
 the Mercian laws existing in the counties bordering 
 on Wales and retaining old. British customs; upon 
 the West Saxon of southern and southwestern coun- 
 ties of England; and upon the Danish of the western 
 coast, where a Danish settlement had been effected. 
 Some affirm, with apparent good reason, that it was 
 framed in part from the Old Testament; portions of 
 it were undoubtedly taken from the principles of the 
 Roman Pandects. These were compiled by Roman 
 lawyers by command of Justinian from the writings 
 and opinions of the old Roman jurists and formed a 
 part of the body of the civil law of Rome, which has 
 been accepted as the basis of medieval legislation and 
 of nearly all European law. The spirit of these laws 
 found its way into England through the clergy, who 
 were the only learned class of that period. Some 
 centuries later the laws themselves became embodied 
 in the common law of England in a more positive 
 and extensive form. 
 
 § 21. Growth of the common law. — At the time 
 of the Norman conquest the invaders found the Eng- 
 lish people living under a code of laws which was
 
 §22] KINDS AND SOURCES OF LAW IN THE U. S. 
 
 19 
 
 compiled by Edward the Confessor, upon the basis 
 of the code of Alfred, which has already been men- 
 tioned. The renewal by Magna Charta of the "an- 
 cient Saxon privileges" was the re-enactment of a part 
 of the code of Edward. Although the common law 
 is an unwritten law, its rules and principles have been 
 handed down from generation to generation, and 
 sometimes have almost approached in exactitude the 
 complete and precise form of statute law. An illus- 
 tration of the adaptability of the common law to the 
 wants of society is found in the manner in which the 
 rules of the law merchant were incorporated into or 
 were assimilated by the common law. During the 
 operation of the feudal system the rules of the com- 
 mon law were inadequate to the needs of the mer- 
 cantile classes. As controversies came before the 
 courts, they were in the habit of applying to com- 
 mercial contracts the rules which had been adopted 
 among merchants in their business dealings, just as 
 courts now interpret and enforce the contracts of men 
 engaged in the various callings of life, according to 
 the customs and usages prevailing i'n such callings. 
 So numerous were the rules of the law merchant, and 
 so important had the mercantile classes become, that 
 by a statute enacted during the reign of James I 
 these rules were declared to be a part of the common 
 law. And substantially as they were when this stat- 
 ute was enacted, they have come to be a part of the 
 common law of the United States. 
 
 §22. Common law in the United States. — The 
 
 common law of the states comprising the United 
 States consists of the common law of England as 
 modified by English statutes previous to the coloniza- 
 tion of America, so far as it was adapted to the al-
 
 20 • ELEMENTARY LAW [§22 
 
 tered conditions and circumstances of the colonies, 
 and those Enghsh statutes passed afterwards prior 
 to the American Revolution, which were practically 
 accepted and adopted in America, and the judicial 
 precedents and established customs of the states them- 
 selves. The common law is presumed to exist in the 
 colonial states and in states where the population was 
 largely representative of those states. In fact, all the 
 states except Louisiana have in one form or another 
 adopted the common law. The United States as a 
 nation has no law that is not embodied in the consti- 
 tution, treaties or laws enacted by congress.
 
 CHAPTER III 
 
 STATUTES 
 
 Sec. Sec. 
 
 23. Statutes as legal sources. 27. Public and private statutes. 
 
 24. Constitutions. 28. Interpretation of statutes. 
 
 25. Validity of statutes. 29. Statutes the most impor- 
 
 26. Retroactive statutes. tant of all legal sources. 
 
 § 23. Statutes as legal sources. — A statute is that 
 legal source of the law which consists in the declara- 
 tion of legal rules by the properly constituted authori- 
 ties. The authority to declare such rules is generally 
 known as legislative power. In the United States it is 
 vested in the congress, the legislatures and the mu- 
 nicipal councils of the federal, state and city govern- 
 ments respectively. In the latter case the rules are 
 generally known as ordinances. These statutes are 
 interpreted, applied and enforced by the courts of the 
 state. In an abstract sense, the principles and rules 
 laid down by the courts in the exercise of this func- 
 tion constitute the law, while the statutes themselves 
 are the sources of the law. 
 
 § 24. Constitutions. — We come now to inquire as 
 to the manner in which the supreme power of the 
 state prescribes the rules of civil conduct, as they are 
 embodied in the statutes. The constitution of the 
 nation, or of the state, is the direct and imperative 
 expression of the will of the people. Legislatures 
 and courts are under the constitution, and are created 
 by it or by its authority. This paramount written 
 law, the Constitution of the United States, can only 
 
 21
 
 22 ELEMENTARY LAW [§ 25 
 
 be amended by a vote of three-fourths of all the 
 states of the Union. The constitutions of the several 
 states may be amended in such manner as is provided 
 in the constitutions themselves. Like statutes, consti- 
 tutions are legal sources of the law. 
 
 § 25. Validity of statutes. — The powers of con- 
 gress are fixed by the constitution, as it is interpreted 
 by the Supreme Court. If the power to legislate on 
 a subject is conceded to congress, the Supreme Court 
 wall not inquire into the policy of a law, or the mo- 
 tives, which led to its enactment, or the manner in 
 which it was enacted. It is only when the law vio- 
 lates a provision of the constitution that the court 
 by its judgment pronounces it null and void. Courts 
 of justice should bring every law to the test of the 
 constitution, first of the United States and then of 
 their own state, if it be a state statute, as the para- 
 mount and supreme law, to which every inferior power 
 must conform. As the statutes enacted by congress 
 and by the state legislature must be brought to the 
 test of the constitution, so the ordinances of towns and 
 cities, which are the creatures of legislative power, 
 must be brought to the test of the laws or charters by 
 virtue of which they exist. Statutes enacted by con- 
 gress are in force from and after their passage, unless 
 the time of the taking effect of the law is postponed 
 to a later date by the act itself. It would be mani- 
 festly unjust to enact statutes without providing some 
 means of publishing them, so in civilized nations legis- 
 lative enactments which have the force of laws are 
 published by authority. In some states of the Union, 
 general statutes are not in force until they are printed 
 and distributed to every county in the state. In some 
 states if in the body of the act it is declared that an
 
 26] STATUTES 23 
 
 emergency exists for the immediate taking effect of a 
 statute, it is in force from and after its passage. 
 
 It is a rule of decision which the courts recognize, 
 that whenever the constitutionaHty of a statute is 
 doubtful, it will be sustained. No statute by any fic- 
 tion or relation shall have any effect before it be actu- 
 ally passed. And a statute is not passed so as to have 
 effect until the legislature has given the required num- 
 ber of votes in its favor. When the fact of its receiv- 
 ing this number of votes is certified to the governor 
 or president by the presiding officers of the two 
 houses, and the executive signature and approval are 
 affixed thereto, it is in effect and not before, unless in 
 exceptional cases where the legislature may re-enact 
 a statute by passing it over the veto of the governor 
 or president, as provided in the constitution. 
 
 § 26. Retroactive statutes. — It is a maxim that a 
 legislative enactment ought to be prospective and not 
 retroactive. A retroactive statute would partake in 
 its character of the mischief of an ex post facto law, 
 as to all cases of crimes and penalties; and in cases 
 relating to contracts or property it would militate 
 against every sound principle. A retrospective statute 
 affecting and changing vested rights is generally con- 
 sidered as grounded on unconstitutional principles, 
 and consequently is void. But this doctrine does not 
 apply to remedial statutes, which may be of a retro- 
 spective nature, provided they do not impair con- 
 tracts or disturb vested rights, and only tend to con- 
 firm rights already existing, by curing defects and 
 aiding in enforcing existing obligations. Such stat- 
 utes are held valid even though operating in a degree 
 upon existing rights, as a statute to confirm marriages 
 defectively celebrated or a sale of lands defectively
 
 24 ELEMENTARY LAW [§27 
 
 made or acknowledged, and where the right of third 
 parties have not intervened. 
 
 § 27. PubHc and private statutes. — Statutes may- 
 be public or private. Public statutes usually relate to 
 the general and public interests of the country or com- 
 munity to which they apply as distinguished from pri- 
 vate statutes which generally concern only the particu- 
 lar interests of certain individuals. Public statutes bind 
 everybody, private statutes do not bind strangers in 
 interest by their provisions. A party to a suit basing 
 a claim upon a private statute must plead it specially, 
 but one who bases his claim upon a public statute need 
 not plead it at all. 
 
 § 28. Interpretation of statutes. — After a statute is 
 enacted in due form and its constitutionality is estab- 
 lished or conceded, questions may arise as to the 
 meaning of the statute. Here the duty of interpreting 
 the statute devolves upon the courts, whenever in 
 an action before them the parties to the action insist 
 upon different interpretations. Interpretation is the 
 art of finding out the true sense of any form of words, 
 that is, the sense which their author intended. And 
 here let us note some of the rules of interpretation. 
 It is not permitted to interpret what needs no inter- 
 pretation. Where the intention of the law-making 
 power is plainly manifest from a reading of the stat- 
 ute, that intention should prevail over the literal sense 
 of the terms used. The intention of the lawgiver 
 is to be deduced from a view of the whole and of 
 every part of a statute compared together, just as a 
 contract or a will is interpreted and the meaning of 
 the parties ascertained by considering every part of 
 the instrument under consideration. Where the words
 
 § 28] STATUTES 25 
 
 are not explicit, the intention is to be collected from 
 the context, from the occasion and necessity of the 
 statute, from the mischief felt, and the object and 
 remedy in view; and the intention is to be taken 
 according to what is consonant to reason. The words 
 of a statute, if of common use, are to be taken in 
 their plain, obvious and ordinary sense. If technical 
 words are used they are to be taken in a technical 
 sense, unless it clearly appears from the context or 
 other parts of the law that the words were intended 
 to be applied in a different sense. If the technical 
 meaning of terms is in doubt or disputed, the court 
 may call to its aid those whose calling has made 
 them acquainted or familiar with the meaning of such 
 words. Statutes should be interpreted according to 
 the natural and obvious import of the language with- 
 out resorting to subtle or forced constructions. All 
 the statutes of the same legislature relating to the 
 same subject are to be taken together, for they are 
 considered as having one object in view, and as act- 
 ing on one system. So, v/henever it is clear that a 
 power is given by the statute, the court will construe 
 it as implying the right to make it effective. It is 
 a rule in some, but not all of the states, that statutes 
 enacted in derogation of the common law are to be 
 strictly construed. Remedial statutes are to be liber- 
 ally construed. Where a literal construction would 
 violate the legislative intention, it will not be adhered 
 to. A saving clause or proviso repugnant to the body 
 of the statute is void. Where a statute contains a 
 word whose meaning is known to the common law, 
 that meaning will be adopted. In construing a doubt- 
 ful statute, the preamble and title may be consulted. 
 Long-continued practice may affect the construction
 
 26 ELEMENTARY LAW [§ 29 
 
 of a Statute, and the contemporaneous construction of 
 a statute is of high authority. 
 
 Penal statutes are to be strictly construed. Bec- 
 caria says: "Penal laws should be so plain that no 
 judge should be tempted to interpret them. There is 
 nothing more dangerous than the axiom, 'the spirit 
 of the law is to be considered.' " If the legislature 
 has not spoken plainly in such cases, it is contended 
 that there is no law. It is better thus than to allow 
 judicial legislation concerning the lives and liberties 
 of the subject. The disorders that may arise from a 
 rigorous observance of the letter of the penal laws 
 are not to be compared with those produced by the 
 interpretation of them. Statutes against frauds are 
 liberally construed, and the reason is that they deprive 
 no man of his right. They inflict no punishment; 
 they simply prevent a wrongdoer from taking or keep- 
 ing what he seeks or holds by fraud. 
 
 The common law gives place to a statute, and an 
 old statute gives place to a new one. AVhere the pro- 
 visions of a new statute are repugnant to the provi- 
 sions of an earlier statute, the earlier is said to be 
 repealed by implication, the later statute being the 
 more recent expression of legislative intention. Re- 
 peals by implication are not favored. Statutes limiting 
 the powers of future legislatures are void. A legis- 
 lature can not enact an irrepealable statute unless it 
 is in the form of a contract — such as a charter, under 
 which rights have become vested. Ordinarily the re- 
 peal of a repealing statute revives the statute which 
 had been repealed. Some states have by law abolished 
 this rule. 
 
 § 29. Statutes the most important of all legal 
 sources. — This is true for several reasons. In the
 
 § 29] STATUTES 27 
 
 first place it is only through statutes that existing 
 laws can be abrogated. Precedent and custom can 
 only establish new law where none before existed. 
 They can only provide rules to fill up the gaps in the 
 legal system. By statutes, however, new rules may 
 not only be established, but old ones abolished. As 
 new conditions require changed laws, these changes 
 are achieved only through legislation. For example, 
 where states find common-law pleading too antiquated 
 to be useful and effective, they replace it by adopting 
 statutory rules, known as codes. So where the com- 
 mon-law disability of married women was found to be 
 unpopular and unwise it was eliminated by legislative 
 enactment. Since most important laws of today re- 
 quire changes or alteration in the established legal 
 rules, legislation is becoming of increasing importance. 
 
 The second reason for the great importance of 
 legislation is that it anticipates the cases before they 
 arise and may deal comprehensibly with all the phases 
 of the question involved, while precedent can not 
 produce a legal rule until a case for its application 
 actually arises and then it must be limited to the 
 bare necessities of the individual case, for it is a rule 
 of precedent that the courts must not lay down new 
 principles of law except such as are necessary to the 
 decision of the case. If the decision goes beyond 
 these narrow limits, it is but mere dicta. The result 
 is that precedent creates law by piecemeal, at different 
 times and through different judges and, therefore, 
 that such law is likely to be fragmentary and unor- 
 ganized. 
 
 The final reason for the modern importance of leg- 
 islation is that it makes possible a careful division of 
 labor in the formation of new legal principles. This 
 division of labor is especially necessary in much of
 
 28 KLICMliNTAUV LAW [§ 29 
 
 what is known as modern social legislation. For ex- 
 ample, to establish a set of legal rules adequately 
 dealing with the problem of Workmen's Compensa- 
 tion requires an expert, technical knowledge of the 
 details of modern industry, of dangerous machinery 
 and methods of its safeguarding, of industrial diseases, 
 their causes and their cures, and numerous otlier 
 questions which are involved and which can be se- 
 cured only through the co-operation of expert investi- 
 gators in the different subjects. Obviously such a 
 law can . be effectively and scientifically formulated 
 only by a large deliberative body whose members 
 represent the different points of view of modern life, 
 and where the machinery of modern investigation and 
 research is made available. For these reasons legisla- 
 tion is the most powerful, the most important and 
 the most effective source of modern law.
 
 CHAPTER IV 
 
 CUSTOM AND PRECEDENT 
 
 Sec. Sec. 
 
 30. Origin and nature of gen- 33. Particular customs. 
 
 eral customs. 34. Judicial precedent is a legal 
 
 31. General customs as legal source of law. 
 
 sources of the law. 35. Declaratory and original 
 
 32. Decreasing importance of precedents. 
 
 custom as a legal source. 36. Importance of precedents. 
 
 § 30. Origin and nature of general customs. — 
 
 Customs are either general or particular. General 
 customs form one of the legal sources of the common 
 law. It is a matter of historical observation that 
 long before any supreme political authority has come 
 into being a series of practical rules determine the 
 main relations of family life, the conditions of owner- 
 ship, the punishment of the more violent forms of 
 moral wrongdoing, and the adjustment of contracts. 
 The mode in which such rules are formulated seems 
 to be the following: A spontaneous practice is first 
 follow^ed, and if good and useful, is generally copied 
 over and over again, the more so as habit and asso- 
 ciation always render the imitation of an old and 
 familiar practice easier than inventing a new and un- 
 tried one. It is the peculiarity of the class of cus- 
 toms which are the true germs of future law that 
 they are being constantly brought to mind and tested 
 by application to actions. Customs prescribing the 
 formalities and conditions of marriage are brought 
 into distinct consciousness on the formation of every 
 fresh family. The incessantly active vicissitudes of 
 birth and death in every community call for an un- 
 
 ^29
 
 30 ELEMENTARY LAW [§31 
 
 intermittent series of decisions upon the competing 
 claims of survivors in matters of ownership, and upon 
 the responsibiHties of those who may already be 
 called "personal representatives" in matters of con- 
 tract. The main machinery for the conversion of 
 desultory and uncertain customs into fixed rules are 
 the decisions which are constantly demanded for the 
 purpose of ascertaining the nature and extent of an 
 alleged custom. These decisions may be made by a 
 casually selected arbitrator, a village council, or any 
 man or body of men agreed upon, or any person who 
 may have authority to hear the matter. The grounds 
 of decision may be personal mercy, expediency or 
 analogy. Such decisions tend to crystalize and solidify 
 until they frequently become as certain and definite 
 as the rules of established law. 
 
 § 31. General customs as legal sources of the law. 
 — A general custom is defined as being such a usage 
 as by common consent and uniform practice has be- 
 come the law of the place, or of the subject-matter 
 to which it relates. A particular custom is distin- 
 guished from a general custom in this, that the latter 
 is universal, while the former is particular to this or 
 that place or group. It is distinguished from usage 
 in this, that custom is the rule of which usage is 
 the legal evidence. The difference between prescrip- 
 tion and custom is that while prescription is the 
 making of a right, custom is the making of a law. 
 General customs are such as constitute a legal source 
 of the common law and extend to the whole country; 
 particular customs are those which are confined to a 
 particular district or to the members of a particular 
 class. The existence of the former is to be deter- 
 mined by the court, of the latter by the jury. General
 
 § 33] CUSTOM AND PRECEDENT 31 
 
 customs are said to be legal sources of the law: (a) 
 where they have existed time out of mind; (b) have 
 been uninterrupted; (c) have been peaceably enjoyed 
 or acquiesced in; (d) are reasonable; (e) are certain; 
 (f) are considered compulsory by those to whom they 
 apply; (g) are consistent with statute law and the 
 established rules of the common law. Such customs 
 as possess the foregoing requisites, being legal sources 
 of the law, like statutes create rights and duties which 
 the courts will recognize and apply in their adminis- 
 tration of justice. In other words, binding authority 
 is attributed to those customs meeting the specified 
 requirements. 
 
 § 32. Decreasing importance of custom as a legal 
 source. — The legal requirements of a valid custom 
 are so exacting that its law-creative efficacy is almost 
 eliminated today. Few customs are found that con- 
 form to the requirements. Originally custom was 
 probably the most important and fruitful source of 
 law, but the great number of precedents and the rap- 
 idly increasing bulk of legislation necessarily restricts 
 custom as a legal source within very narrow limits. 
 
 § 33. Particular customs. — Particular or special 
 customs, applying only to particular callings or places, 
 do not constitute legal sources. They are given a certain 
 legal effect, however, by being incorporated into agree- 
 ments between parties who have dealt with reference 
 to them. Usages, which are plainly repugnant to well- 
 known rules of law, are not recognized and can not be 
 proved. Customs of trade are proved to show the inten- 
 tion of parties in making contracts. But customs of 
 trade can not be enforced against a stranger who is 
 ignorant of them. For instance, a merchant can not
 
 32 . EI^EMENTARY LAW [§ 34 
 
 charge a customer interest on a running account because 
 it is his custom, unless the customer knows it. Nor will 
 a custom be allowed to control the interpretation of a 
 written instrument in opposition to its express terms, and 
 courts are always averse to holding customs good where 
 they vary the common-law obligations of the parties. 
 
 § 34. Judicial precedent as a legal source of law. 
 
 ■ — A precedent is a rule of law laid down by a court in 
 a judicial controversy as a basis of its decision. Accord- 
 ing to the old orthodox legal theory all common law had 
 its legal source in custom. Precedents were declared to 
 be nothing more than the evidences of customary law. 
 While many courts still do lip service to this theory they 
 do not nor have they ever observed it in practice. As 
 Salmond says, it "was never much better than an 
 admitted fiction." The practice is to regard judicial 
 precedents as rules of law merely because they are 
 precedents and wholly regardless of whether they are 
 grounded on established customs or the mere discretion 
 of the courts. Regardless of the legal theory, therefore, 
 judicial precedent is in fact a legal source of law- 
 
 § 35. Declaratory and original precedents. — Sal- 
 mond classifies precedents as declarator}^ and original. 
 "A declaratory precedent is one which is merely the appli- 
 cation of an already existing rule of law; an original 
 precedent is one which creates and applies a new rule. 
 In the former case the rule is applied because it is already 
 law; in the latter case it is law for the future because it 
 is now applied." It is the latter class of precedents that 
 is most important for it is through them that the courts 
 exercise their law-creative functions. No legal system 
 can be so complete as to anticipate all the possible con- 
 flicts of interests whose peaceful and just solution re-
 
 §361 CUSTOM AiND I'KJiCJiDIiNT 33 
 
 b 
 
 quires judicial settlement. When such cases come before 
 the courts fur adjudication they decide it as best they can, 
 laying down as a basis for their decision some rule 
 generally based upon common sense, practical expediency 
 or justice. This precedent becomes a rule of law to be 
 observed in future cases. This is what is known as 
 judicial legislation. Two important distinctions must be 
 made between this and legislation in its ordinary sense, 
 and these are that judicial legislation is always retroactive-, 
 and that it should never be resorted to except when made 
 necessary to the decision of an actual controversy by the 
 absence of any statute, custom or precedent applicable 
 to the pending case. 
 
 § 36. Importance of precedents. — What is com- 
 mon law is declared by the courts, and what the courts 
 have declared to be the law is found in their records 
 and published decisions. When a rule of law has once 
 been declared it ought not to be disturbed unless by a 
 court of appeal or review, and never by the same court, 
 unless upon very urgent reasons and upon a clear mani- 
 festation of error; any other practice leaves the citizen 
 in a perplexing uncertainty as to the law. A precedent, 
 even where it appears to be flatly unreasonable and un- 
 just, may and should be followed if it has been acquiesced 
 in for a long period, or if it has become a rule of prop- 
 erty, so that titles have been acquired in reliance upon it, 
 and vested rights will be disturbed by overruling it. In 
 such a case the better course is to leave the correction of 
 the error with the legislature which can so shape its 
 action as to make it prospective only, and thus prevent 
 the injurious consequences that must follow from judi- 
 cially declaring the previous decision unfounded. 
 
 3 — Elem. Law.
 
 CHAPTER V 
 SOCIAL UTILITY OF THE LAW 
 
 * 
 
 Sec. Sec. 
 
 37. Some basis of regulating 40. Courts of justice versus 
 
 conduct necessary in courts of law. 
 
 modern society. 41. Certainty frequently more 
 
 38. The basis of regulating important than justice. 
 
 conduct to be one that is 42. Scientific character of the 
 
 general and equal in ap- law. 
 
 plication. 43. Law a protection against 
 
 39. The state's basis of regu- error and corruption. 
 
 lating conduct to be one 44. The defects of the law. 
 that guarantees certainty 
 and uniformity. 
 
 § 37. Some basis of regulating conduct necessary 
 in modem society. — In every organized society real 
 or apparent conflicts between the interests of its mem- 
 bers are always found. As society becomes more complex 
 these conflicts are more frequent and intricate. To adjust 
 these disagreements justly and peacefully is one of the 
 primary purposes of the state. To afford an effective 
 basis for the adjustment is the function of the law. Law 
 implies a set of established principles which the state will 
 impose upon its members through its judicial power. To 
 consider the social utihty of tlie law we must consider 
 the effectiveness of legal principles both as the basis for 
 the determination of individual and social conflicts and 
 for the effective co-operation necessary to modern society. 
 This can best be done by considering the alternatives that 
 are available to the organized groups. These alternatives 
 are two in number. The first is to invest tlie authorities 
 with supreme and arbitrary power of determining con- 
 troversies according to individual whims or caprice. The 
 
 34
 
 § 38] SOCIAL UTIUTY OF THE I.AW 35 
 
 second is to invest the courts with authority to decide 
 each incHvidual case according to the dictates of right, 
 natural justice or expediency, unrestrained by legal rule, 
 precept or precedent. The first alternative may be dis- 
 missed without serious consideration as such a system 
 would only be possible in a semicivilized country and 
 under an absolute despotism. The second alternative de- 
 serves more serious consideration and is frequently advo- 
 cated to a more or less degree by persons interested in 
 reform. There are two questions then to be considered. 
 The first must inquire as to what principles are necessary 
 to the proper administration of justice. The second ques- 
 tion involves the determination of whether legal rules on 
 the one hand or the ideals of right, natural justice or 
 expediency on the other, will best conform to those 
 principles found to be necessary to the administration of 
 justice. 
 
 § 38. The basis of regulating conduct to be one 
 that is general and equal in application. — If conflict- 
 ing interests between individuals and groups are to be 
 adjusted effectively and peacefully by the state then it 
 would seem that there are certain general principles that 
 should be observed. Among these principles are generality 
 and equality. The absence of these in any civilized state 
 would result in inevitable revolt. To enforce the con- 
 tracts of A without enforcing those of B or to for- 
 bid one to carry on a business dangerous to the public 
 health but permit it to another would be intolerable. 
 One's sense of natural justice revolts against the very 
 thought of such a system. This does not mean that there 
 must be one rule for all men and all conditions, but that 
 all men of like status and under like conditions and in 
 like situations must receive equal consideration and treat- 
 ment. That the state should require duties of married
 
 36 ELEMENTARY LAW [§ 39 
 
 men different from those required of bachelors does not 
 violate the principles of generality or equality, but t(j 
 compel one husband to observe certain duties to his wife 
 and allow another under like conditions to violate them 
 with impunity would constitute the grossest violation. 
 The necessity of the observation of these principles is 
 especially clear in the case of property rights. Unless 
 the conflicts over property rights between individuals and 
 between the individuals and the state are adjusted in con- 
 formity with these ideals there can be but little peace and 
 progress in society. If the state under the forms of 
 taxation takes a portion of A's property without touch- 
 ing that of B ; if it will protect from the attacks of 
 others the property of C, but leave the property of 
 D subject to confiscation; if. in other words, the rights 
 of property are not equally and generally enjoyed 
 throughout the realm the incentives to productive labor 
 will be diminished, while private conflicts and private 
 vengeance over disputed rights will disturb the public 
 peace. The lack of thrift, enterprise and industry among 
 the natives of countries where these principles do not 
 obtain bear eloquent testimony to their social value. 
 
 § 39. The state's basis of regulating conduct to 
 be one that guarantees certainty and uniformity. — 
 The requirement of equality can not be met except 
 by the observation of other important principles and 
 they are certainty or definiteness and uniformity. 
 There can be no equal protection of individuals or 
 property unless the principles in accordance with which 
 the protection is accorded are definite and uniform. Dif- 
 ferent judges would differ between different cases unless 
 thev have for their aid and guidance certain principles 
 so definite and uniform as to be capable of scientific ap- 
 plication. The same rights of property come before the
 
 § 39] SOCIAL, UTILITY OF THE LAW 
 
 37 
 
 courts for adjudication in so many different and perplex- 
 ing ways and surrounded by such different circumstances 
 and the different judges differ so in temperament and 
 point of view, that to protect equally the property rights 
 involved in each case there is required a definite and uni- 
 form standard by which the courts may be guided in 
 their decisions. Otherwise, the state could not deal with 
 each case in accordance with a general ideal or rule, 
 and the equality demanded by one's sense of justice would 
 be impossible. 
 
 Certainty and uniformity are not only necessary as a 
 means to secure generality and equality in the administra- 
 tion of justice but also as a necessary condition to modern 
 social and industrial development. All great movements 
 require complex schemes of co-operation, minute division 
 of labor, the investment of great amounts of capital, 
 and cover extended periods of time. The promoter, the 
 capitalist and the laborer to a certain extent pool their 
 interests in this common effort and frequently must wait 
 for years to secure the full profits of the undertaking. 
 They put their labor and capital and effort into these 
 great enterprises and receive in return certain rights. 
 They are willing to do this because they have confidence 
 that these rights will be enforced by the state, and that 
 they will be enforced with such definiteness and uni- 
 formity that when their rights mature they will be of the 
 same nature and content that they were when the under- 
 taking was begun. People will not invest their capital 
 or effort in any undertaking unless amply assured that 
 the rights so acquired will be enforced by the state with 
 a certainty and uniformity that is unquestioned. It is as 
 Sir Frederick Pollock says: "The demand for certainty 
 becomes more exacting as men's affairs become more 
 complex, and the aid of the courts is more frequently 
 sought. Trade and traffic in their increasing volume,
 
 38 ELEMENTARY I.AW [§40 
 
 Speed and variety of movement, raise new questions at 
 every turn, and men expect not only to get their differ- 
 ences settled for the moment, but to /lave solutions which 
 will prevent the same difficulties from giving trouble 
 again." 
 
 § 40. Courts of justice versus courts of law. — 
 From the preceding sections it appears that the effective 
 and peaceful administration of justice can be obtained only 
 by observing certain principles of equality and generality 
 upon the one hand and of certainty and uniformity upon the 
 other. We are now ready to consider which of the two — the 
 administration of justice according to law or according 
 to the dictates of right, natural justice and expediency 
 will best observe the foregoing principles. A casual con- 
 sideration will demonstrate the inefficiency of the latter. 
 What is right, just, or expedient in a given case depends 
 so much upon the personal point of view, the tempera- 
 ment of the presiding judge, his particular philosophy of 
 life, his education and environment, that it is impossible 
 that justice should be administered equally and generally 
 by different judges if no other criterion be furnished 
 them. There would be as many different principles and 
 kinds of justice as there are judges in the realm. There 
 could be no greater generality and equality in the admin- 
 istration of justice than there would be in the tempera- 
 ment, individual philosophy, and training and environ- 
 ment of the courts. Uniformity and certainty would be 
 impossible. Whether or not contracts would be enforced 
 would depend not upon their compliance with certain and 
 definite established principles, but whether in the opinion 
 of the court concerned it would do justice between the 
 parties. People would indeed be slow to risk their labor 
 and capital upon a guess as to what some future judge 
 might consider just and right. The first English courts
 
 § 40] SOCIAI, UTILITY OF THIi LAW 39 
 
 were established as courts of justice, but the practical 
 considerations above mentioned drove them into the role 
 of courts of law. When equity courts were established 
 in England they were not bound by any principles of law, 
 but they could not withstand the constant pressure to 
 yield to general principles of equality and certainty which 
 they could observe only by substituting rules of law for 
 principles of abstract justice. The law adopted by the 
 courts generally represents the courts' ideas of justice 
 and expediency, but when once adopted they then become 
 the law to be followed scrupulously thereafter unless 
 legally repealed, even though later judges may differ as 
 to their wisdom and rightness. The public may then rely 
 upon them. Law-abiding citizens may adjust their busi- 
 ness and conduct accordingly. The complicated co- 
 operation necessitated by modern conditions is thus 
 afforded a basis for effective operation. Great under- 
 takings would be impossible if the protection of the rights 
 of the various parties to the undertaking were to be 
 made dependent upon the theories of abstract justice held 
 by some judge, rather than upon their compliance with 
 the established rules of law. 
 
 Professor Pound aptly sums up the situation as fol- 
 lows : "Division of labor can not exist without restraints 
 on the liberty of each in the interest of the like liberties 
 of all. But these limitations, to achieve their purpose, 
 must be regulated definitely, and, as we have seen, that 
 means for practical purposes, that they must be regulated 
 by reason. In other words, they require law. They re- 
 quire that certainty in definition and application involved 
 in the administration of justice according to law. Ac- 
 cordingly, the whole course of development of society has 
 shown a movement away from justice without law and 
 toward the working out of a scientific and complete body 
 of rules for the administration of justice."
 
 40 EI^EMENTARY LAW [§ 41 
 
 § 41. Certainty frequently more important than 
 justice. — Another objection to courts of justice as dis- 
 tinguished from courts of law is that frequently the 
 question of certainty and definiteness is the all-important 
 consideration. There are many very important and valu- 
 able rules of law that have no basis in considerations of 
 abstract justice. Laws requiring persons to drive on the 
 right-hand side of the road or prescribing the forms of 
 certain instruments are of that character. The important 
 thing is not that they drive on the right side or the left 
 side, but that all observe a uniform rule for their mutual 
 convenience. These and all other rules may work hard- 
 ship in individual cases, but it is argued that the benefits 
 of having definite and uniform rules of conduct far more 
 than offset the occasional injustice that may be done. 
 Obviously these benefits could only be enjoyed where 
 justice is administered by courts of law. 
 
 § 42. Scientific character of the law. — To admin- 
 ister justice to all persons with equality and certainty 
 requires not only a body of law for the guidance of the 
 courts, but requires a body of law developed with 
 scientific accuracy and precision. The function of the 
 modern court is to apply the legal rules to the facts 
 material to the controversy. The facts are frequently 
 so complicated that this function becomes exceedingly 
 delicate and requires great powers of analysis, discrim- 
 ination and logical deduction. It furthermore requires 
 the development of clear and definite technique of expres- 
 sion and use of language. This is true because it is 
 only through language that the principles of the law can 
 be applied. If they are to be applied with that certainty 
 and definiteness that justice and expediency require then 
 the language which is the instrument of the application 
 must be capable of clear and discriminating use. A
 
 § 43] SOCIAL UTILITY OF THE LAW 41 
 
 technical terminology is just as necessary to the science 
 of law as it is to the science of medicine or mathematics. 
 The keen analysis, discrimination and logical deduction 
 necessary to the consistent application of legal principles 
 to complicated situations requires a technique of language 
 that is equally definite, keen and refined. One of the 
 worst evils of American legislation is that the drafting 
 of the laws is done by men who have not mastered the 
 technique of legal expression and who can not, therefore, 
 formulate principles capable of exact and consistent appli- 
 cation. It is very common to find the same word or 
 expression used with several different meanings in the 
 same statute. This would not happen if statutes were 
 drawn up by men trained in legal reasoning and expres- 
 sion. A great many of the intelligent criticisms leveled 
 at the courts and the legal system have their justification 
 in decisions and rules resulting from a failure to recog- 
 nize the scientific character of the law. It is because of 
 its technical character that the administration of law has 
 been confided to the legal profession, and consequently 
 upon them rests the burden of its scientific perfection. 
 At this point it is important to keep clear the distinction 
 between the science of law and the science of legislation. 
 The latter science has to do with the framing of new 
 laws and the changing of old ones, and involves not only 
 the science of the law, but also the fields of social science 
 and philosophy. Its concern is with the question of what 
 the law ought to be. As distinguished from this the 
 science of law is concerned with what the law is and its 
 accurate and faithful application. 
 
 § 43. Law a protection against error and corrup- 
 tion. — In the administration of justice a system of 
 law will afford very effective safeguards against corrup- 
 tion and error. If, in the decision of controversies, the
 
 42 ELEMENTARY LAW [§43 
 
 court has no other criterion for its decision than justice 
 and expedience, there is no definite standard by which his 
 decisions may be tested. The uncertainty and infinite 
 variety of honest opinion as to what might be just or 
 expedient in many given cases furnish a cloak under 
 which the most corrupt and pernicious motives may be 
 hidden. If, however, the court is under obhgations to 
 decide the case according to the law, developed and 
 expressed with scientific accuracy and certainty, then 
 there is a standard by which the court's decision may be 
 tested. Intelligent public opinion is thus given a chance 
 to function effectively. Should the judge depart from the 
 established principles of law his decision may be attacked 
 and his motives impugned. The knowledge that decisions 
 must be justified by showing their conformity to definite 
 and fixed standards instead of by some plausible theory 
 of abstract justice has been found to have a most power- 
 ful influence upon the court. The possibilities of 
 prejudice, partiality or corruption are largely eliminated 
 through the substitution of the strict rules of legal science 
 for the personal discretion of the judge. The same 
 process also tends to eliminate errors of individual judg- 
 ment in judicial administration. The law represents the 
 thought, experience and conscience of society past and 
 present. Its principles have been tested out in the school 
 of experience and have received the approval of the 
 state. While they may not always be ideally just and 
 expedient yet experience seems to indicate that they 
 afford surer and safer guides than the individual judg- 
 ment of the court The force of this will be apparent 
 upon considering the difficulties under which the courts 
 must of necessity perform their tasks. They are greatly 
 overworked. Most of them are behind in their dockets, 
 some of them being three or four years in arrears. They 
 are compelled to give them hasty consideration. They
 
 § 44] SOCIAL, UTILITY OF THE LAW 43 
 
 must pass upon every kind of questions from those 
 involving the scientific principles of chemical combination 
 in an infringement suit to the solution of that vexing 
 problem as to what constitutes a fair rate to be charged 
 by public service companies. These come before the court 
 in rapid succession and any attempt to solve each ques- 
 tion on its individual merits would involve the court in 
 interminable delays or result in hastily formed opinions 
 incompatible with the just and careful disposition of 
 difficult and important questions. A definitely formulated 
 legal system seems to furnish the only relief from these 
 alternatives by affording a scientific method for decision, 
 with which the courts should be thoroughly familiar. 
 
 §44. The defects of the law. — While it is gener- 
 ally admitted among the students of society that law 
 offers the best means for the effective administration of 
 justice, it must not be supposed that law is an unmixed 
 benefit. There are several defects in the law that are 
 serious and deserve consideration. These defects are 
 found in the rigidity, conservatism and needless com- 
 plexity of the legal system. The first defect is inherent 
 in the idea of law, while the other two are only tenden- 
 cies which to a more or less degree may be controlled. 
 By rigidity is meant the generality of the law which 
 ignores many details. For instance, the law says that 
 contracts containing certain specified elements shall be en- 
 forced. While in the long run this will work justice, yet 
 there may be individual contracts complying with these 
 elements yet which, because of certain other elements, are 
 unjust. In spite of this the law can only take account of 
 the legal elements and will therefore occasionally be com- 
 pelled to enforce an unjust contract. Such difficulties can 
 not be avoided. A general rule of law is only possible 
 through a process of abstraction. Abstraction means that
 
 44 ELEMENTARY LAW [§44 
 
 certain elements must be ignored. These elements so 
 ignored are generally the incidental and unimportant ones, 
 but human knowledge can never be sure but that some 
 case may arise where these same elements may be 
 material and consequent injustice result. These are possi- 
 bilities the law must always face. 
 
 By conservatism is meant the failure of the law to 
 keep abreast of the current opinion and problems of the 
 day. Ideas of justice and expedience change and new 
 problems arise with the passing years. Law does not 
 anticipate these new conditions and consequently it is 
 frequently out of harmony with the times. This evil 
 may, however, be greatly alleviated by scientific legisla- 
 tion. The needless complexity of the law makes its 
 understanding and application very difficult and leads to 
 another evil, that of formalism. There is a tendency to 
 elaborate excessively the law by drawing subtle and use- 
 less distinctions. To a certain extent this elaboration and 
 distinction is necessary, but it may be overdone. The 
 law may be made so intricate and complex that not even 
 the profession can deal with it effectively, and such 
 occasionally is the case. Such a development is un- 
 scientific. The result is formalism, in which the aim of 
 the law is overlooked and it is made an end in itself. 
 So much stress is laid upon the form of the law that its 
 substance and purpose are forgotten. These evils may be 
 ameliorated possibly by codification in some cases, but 
 generally the remedy is to be found in emphasizing the 
 scientific character of law and the ultimate social purpose 
 which it must serve.
 
 PART II 
 
 THE LAW OF TORTS 
 
 CHAPTER VI 
 TORTS IN GENERAL 
 
 Sec. Sec. 
 
 45. Classification of the law. 48. Torts distinguished from 
 
 46. Definition of a tort. breaches of contract. 
 
 47. Torts distinguished from 49. Theory of the law of torts. 
 
 crimes. 
 
 § 45. Classification of the law. — Classifications of 
 the law are of two kinds : analytical and practical. Its 
 division into public and private, civil and criminal, or 
 substantive and adjective law are examples of the former. 
 According to Salmond public law is composed of those 
 rules dealing with the "structure, powers, rights and 
 activities of the state," while private law includes "all 
 the residue of legal principles." Civil law has to do with 
 the enforcement and protection of rights as distinguished 
 from the criminal law which is concerned with the punish- 
 ment of wrongs. Those legal principles which deal with 
 the content and creation of rights constitute substantive 
 law in contradistinction to adjective law which governs 
 the methods of their enforcement. Such classifications, 
 while important to a philosophical study of the law, are 
 for the most part too general and abstract to be of great 
 practical value either to the practitioner or the casual 
 student. For practical purposes "the field of law is ordi- 
 narilv divided bv teachers and writers into forty or fifty 
 
 45
 
 46 ELEMENTARY hAW [§46 
 
 subjects, each consisting of a group of closely related 
 topics treated separately from other groups more from 
 practical than from theoretical considerations, though 
 there is usually some fundamental colierence between the 
 topics in each group," Among the more important 
 and general subjects in this classification are torts, 
 criminal law, property, contracts, partnership, corpora- 
 tions, agency, master and servant, persons and domes- 
 tic relations, constitutional law, administrative law, 
 practice, procedure, and courts and their jurisdictions. 
 In the main this volume follows this classification, and 
 one of the most important fields of law thus classified 
 is the law of torts. 
 
 § 46. Definition of a tort. — Salmond defines a tort 
 "as a civil wrong, for which the remedy is an action for 
 damages, and which is not solely the breach of a contract 
 or the breach of a trust or other merely equitable obliga- 
 tion." The word "tort" is from the French and means 
 literally a wrong. In law, however, it has a much more 
 restricted meaning, being confined to a portion of those 
 wrongs for which action for damages will lie. The 
 most important rights protected by this branch of the law 
 are those of personal security, of property, of reputation 
 and of social and business relations. 
 
 § 47. Torts distinguished from crimes. — A crime 
 is defined as a wrong against the state for which the 
 offender may be punished in a criminal prosecution. 
 Murder, larceny, robbery and arson are examples of 
 crimes. Torts are wrongs against individuals for which 
 the remedy is an action to recover the damages suffered 
 from the offending party. The same act may be both a 
 tort and a crime, as for example, where A steals the 
 watch of B, A may be prosecuted by the state for the
 
 § 49] TORTS IN GENERAL, 
 
 47 
 
 theft and B may sue him for the value of the watch. If 
 A commits assault and battery upon B, A may be pun- 
 ished by the state and B may sue him for the damages 
 inflicted. All crimes are not torts, however, as for 
 example an attempt to commit suicide is a crime in some 
 states, but there is no tort since no other party suffers. 
 So conversely, all torts are not crimes. Many wrongs to 
 individuals are not of sufficiently great public importance 
 for the state to make them crimes. If A carelessly drives 
 his wagon down the street and as a result injures B, A 
 is guilty of the tort of negligence for which B can recover 
 damages to the extent of his injury. Unless A's negli- 
 gence is so gross, however, as to amount to a reckless 
 or wanton disregard of the safety of others, it does not 
 constitute a crime. 
 
 § 48. Torts distinguished from breaches of con- 
 tract. — A breach of contract is a violation of an agree- 
 ment by one of the parties thereto. A tort on the other 
 hand is the violation of a right imposed by law without 
 regard to any agreement or consent. The remedy for a 
 breach of contract is generally an action for damages, 
 but its distinguishing feature is that it is based on a 
 contractual agreement. If A wants to sue B for damages 
 for not delivering his chattel to A, A must prove that B 
 had agreed so to do and had failed to carry out the 
 agreement. But if A wants to sue B for damages for 
 trespass upon A's property it will not be necessary for A 
 to prove any agreement whatever for the law imposes 
 upon everyone the duty to respect the rights of property 
 and the violation of that duty is a tort. 
 
 §49. Theory of the law of torts. — Originally the 
 law was based upon the maxim that "he that is damaged 
 ought to be recompensed" regardless of whether the party
 
 48 ELEMENTARY LAW [§ 49 
 
 causing the damage was to blame. The modern tendency, 
 however, is to give the injured party a right to action 
 only where the defendant is in some way culpable. 
 Professor Clark sums up the tendency as follows : "This 
 culpability may be shown by proving that the defendant 
 intended the act which damaged the plaintiff, or that he 
 might have avoided damaging the plaintiff by using the 
 proper amount of care, or that he was engaged in an 
 unlawful act or an extra-hazardous act at the time the 
 plaintiff' suffered the injury. The early law gave protec- 
 tion only against the simpler and more direct violations 
 of the plaintiff's rights. The tendency, however, is toward 
 extending the protection to violations which are less 
 direct and more difficult to trace to the defendant; so 
 that the goal of the law of torts is protection against any 
 unjustifiable infringements of one's rights, or, as it is 
 expressed in the maxim, 'there is no wrong without a 
 remedy.' " The various classes of torts will be treated 
 in succeeding chapters.
 
 CHAPTER VII 
 
 SECURITY OF THE PERSON 
 
 Sec. Sec. 
 
 50. The right to life. 52. Remedies. 
 
 51. When life may be lawfully 53. Recovery for injuries caus- 
 
 taken. ing death. 
 
 § 50. The right to life. — Everyone has a legal 
 right to the security of his person and, stated generally, 
 may treat any interference with his person as a wrong. 
 The right to life is the first and greatest of all rights. 
 No one can lawfully consent to the taking of his life by 
 another, and no one can lawfully destroy his own life. 
 It seems superfluous to say that whoever takes the life 
 of another person is guilty of a legal wrong. But it is 
 stated, for the purpose of indicating certain exceptions, 
 the reasons for which are clear and well settled. 
 
 § 51. When life may be lawfully taken. — The 
 sovereign power may lawfully take the life of a person, 
 by due process of law, as a punishment for crime. 
 
 In time of war or under martial law, it is justifiable 
 or excusable to take the life: (1) Of enemies under 
 arms. (2) Of noncombatants, who, by their fault, 
 expose themselves to the dangers of the conflict. (3) 
 Of any persons who are guilty of grave offenses against 
 the rules of war, such as spies, sleeping sentinels, 
 deserters. 
 
 Where an alternative exists, as between two lives hav- 
 ing equal rights, it being impossible that both should live 
 and it being necessary to make a choice in order to save 
 either, it will be excusable to take one or the other life. 
 A — Elem. Law. 49
 
 50 ELEMENTARY LAW [§52 
 
 Where for self -protection or for the due enforcement 
 of law it becomes necessary to take life, such taking is 
 justifiable. 
 
 The unintentional taking of life will be deemed an 
 inevitable accident and not a legal wrong, unless the act 
 which results in such loss of life be for some other 
 reason an unlawful act. 
 
 § 52. Remedies. — It is obvious, from the nature 
 of the case, that for an unlawful taking of life there can 
 be no redress in favor of the person whose life is taken. 
 And no preventive remedy is given that is effective. It 
 is true, there is punishment by criminal prosecution, but 
 that is deterrent only. There is also the proceeding by 
 surety of the peace, but one who is not deterred by fear 
 of indictment will have little restraint through a bond. 
 The law does, however, give civil redress for the taking 
 of life, in favor of persons standing in certain relations 
 toward the deceased. 
 
 § 53. Recovery for injuries causing death. — At 
 common law there was no right of action in any one for 
 the death of a human being. It was deemed repugnant 
 to the law to attempt any estimate in a pecuniary way 
 of the value of human life. For loss suffered between 
 the date of an injury and the death, the person injured 
 had a right of action, and any one entitled to his services 
 might sue. But for the loss by the death there was no 
 remedy. To supply this defect in the law, statutes have 
 been passed. In this country they are substantially the 
 same as the English statute known as Lord Campbell's 
 Act. It is provided that whenever the death of a human 
 being is caused by the wrongful act or default of another, 
 the personal representative may maintain an action against 
 the wrongdoer, and the damages recovered shall inure to
 
 I 53] SECURITY OF THE PERSON 51 
 
 certain persons having an interest in the Hfe. While the 
 various statutes do not entirely agree as to v^ho shall be 
 the beneficiaries, it is uniformly the law that unless some 
 one or more persons of the classes named survive the 
 deceased, nothing can be recovered. The beneficiary must 
 have some pecuniary interest in the life of the deceased, 
 or reasonable expectation of benefit, and the damages 
 recovered can not exceed such interest or benefit. The 
 statutes limit the amount recoverable, in some states to 
 $5,000, in others to $10,000.
 
 CHAPTER Vni 
 
 ASSAULT AND BATTERY 
 
 Sec. Sec. 
 
 54. Assault and battery in gen- 57. The intent of the wrong- 
 
 eral. doer. 
 
 55. Tiie ability and intent to 58. Consent of the one injured. 
 
 injure. 59. Justitication for battery. 
 
 56. Battery defined. 60. Self-defense. 
 
 61. The remedies. 
 
 § 54. Assault and battery in general. — For cor- 
 poral injuries less than the taking of human life, the 
 law gives redress to the person injured. When the injury 
 is direct and intentional, it is called an assault and battery. 
 It is not essential, in order to constitute a wrong, that 
 the wrongdoer shall have fully carried out his intention, 
 nor that any actual damage shall result. An attempted 
 injury may be an assault, and. though there be no damage 
 actually sufTered, the law presumes that there was some 
 damage. 
 
 An assault is an attempt with unlawful force to inflict 
 bodily injury upon another, accompanied with real or 
 apparent ability to give effect to the attempt, if not 
 prevented. 
 
 § 55. The ability and intent to injure. — In a civil 
 suit for assault, if the defendant had apparent present 
 ability and intent to injure, he is liable, regardless of 
 whether the plaintifT believed there was such ability and 
 intent. And even though the defendant did not have 
 actual present ability, or did not have an intent to injure, 
 he is nevertheless liable, if his conduct was such as 
 reasonably created in plaintiff the belief that such ability 
 
 52
 
 § 59] ASSAULT AND BATTERY 53 
 
 and intent existed. However threatening an act would 
 otherwise appear to be, it is not an assault, if from the 
 words or conduct accompanying the act it is apparent 
 that no injury will be done. Mere words or threats do 
 not of themselves constitute an assault. 
 
 § 56. Battery defined. — Battery is any touching 
 of another person with intent to injure or in an angry, 
 revengeful, rude, insolent or hostile manner, and without 
 his lawful consent. 
 
 § 57. The intent of the wrongdoer. — For civil lia- 
 bility, it is not essential that there shall have been an 
 actual intent to injure the plaintiff. It is sufficient if 
 the act itself was unlawful or if it was intended to 
 injure some person and unintentionally injured the plain- 
 tiff. The essence of the offense is that the defendant 
 shall have been intentionally guilty of a wrong, and that 
 plaintiff's person shall have been unlawfully touched. 
 
 § 58. Consent of the one injured. — If the plaintiff 
 consented to the defendant's act, the defendant is not 
 liable for assault and battery, unless : ( 1 ) The act be 
 a breach of the peace. (2) The plaintiff be legally in- 
 capable of giving consent. (3) The consent be obtained 
 by fraud. (4) Force be used in excess of the consent. 
 
 § 59. Justification for battery, — In time of war, 
 or under martial law, acts that would be justifiable though 
 they result in taking life, will of course be justifiable if 
 they result in any less degree of injury. 
 
 Upon motives of public policy, wherever the law can 
 not be otherwise adequately enforced, it is justifiable to 
 use so much force as is necessary. An officer with 
 authority to arrest may therefore use reasonable force to
 
 54 EI^EMENTARY LAW [§ 60 
 
 effect the arrest. For a like reason any one, officer or 
 private individual, under certain conditions, may use 
 reasonable force to prevent a breach of the peace, or, 
 after a felony has been committed, to apprehend the 
 felon. 
 
 For purposes of correction and punishment a reason- 
 able degree of chastisement is justifiable by a parent upon 
 his child, by a teacher upon the pupil, by a jailer upon 
 his prisoner, and by a shipmaster upon his crew, and 
 under some circumstances upon his passenger. An act 
 that would otherwise be assault and battery may be 
 justifiable where it is necessarily done for the purpose of 
 saving the life, either of the person injured or of another. 
 
 Whenever the force used upon a justifiable occasion 
 is of a degree that is unreasonable or excessive it becomes 
 itself a wrong, and the person so using excessive force 
 becomes liable for the excess, and in some states also 
 loses the right to complain of the violence against him. 
 
 § 60. Self-defense. — Any one may lawfully use 
 force to protect himself against the unlawful force of 
 others. But only so much force is justifiable as is reason- 
 ably necessary for protection. The degree of force that 
 may be lawfully used by way of self-defense varies with 
 the nature of the attack. If the person attacked has the 
 belief upon reasonable grounds that his life is in danger, 
 or that he will receive great bodily harm, he will be 
 excused, though he kill his adversary. But out of regard 
 for human life, the law does not permit one to kill his 
 assailant unless there be such belief upon reasonable 
 grounds. One is bound to retreat, if possible, and to 
 confine his defense within reasonable limits. So, one 
 attacked by another with his fists, can not ordinarily 
 justify the killing of his assailant at once with a knife 
 or other deadly weapon. The law does not, however,
 
 § 61] ASSAULT AND BATTERY 55 
 
 require one to retreat when in his own house. His house 
 is said to be his castle, and he may stand, repelhng any 
 force with force, even though it becomes necessary to 
 take the life of the assailant to repel the assault. Provo- 
 cation by mere words is never an assault, and therefore 
 will never excuse the use of force in retaliation. 
 
 The right of self-defense includes the right of one to 
 protect persons standing in the following relations, 
 husband and wife, parent or person in loco parentis and 
 child, members of the same family and master and 
 servant. The right of self-defense also exists in favor 
 of one for the protection of his possessions and the pos- 
 sessions of those holding the above relations toward him. 
 In order that a person may avail himself of the plea of 
 self-defense, it is generally necessary that he shall have 
 been free from fault in provoking the attack, for the 
 law will not permit the right of self-defense to be used 
 as a cloak for wrongdoing. 
 
 § 61. The remedies. — The civil remedy for as- 
 sault, or for assault and battery, is an action for dam- 
 ages. The injured person is entitled to recover damages 
 for all the natural results of the injury that have been 
 or probably will be suffered. Both mental and physical 
 suffering, or impairment of faculties, the sense of shame 
 and humiliation, the loss of social respect, and actual and 
 direct pecuniary loss, are elements to be considered in 
 assessing the damages. Where the offense is done with 
 malice, or with deliberate intent to injure, exemplary or 
 punitive damages may be recovered, unless the act is 
 also punishable criminally, in which case such damages 
 can not be recovered in a civil action.
 
 CHAPTER IX 
 
 FALSE IMPRISONMENT 
 
 Sec. Sec. 
 
 62. Definition. 66. Lawful restraint under le- 
 
 63. The detention or restraint. gal process. 
 
 64. The unlawfulness of the re- 67. Officers. 
 
 straint. 68. Remedy. 
 
 65. Lawful restraint without 69. Privilege from arrest. 
 
 legal process. 70. Remedy for arrest of priv- 
 
 ileged persons. 
 
 § 62. Definition. — It is every one's right to enjoy 
 the freedom of his person, to go and come whenever and 
 wherever he may lawfully do so. Any interference with 
 this freedom may be a legal wrong. To compel forcibly 
 one to go from a place or to prevent him forcibly from 
 coming to a place will generally amount to and be action- 
 able as an assault, battery, nuisance or trespass, but 
 such an act may not, however, constitute an imprison- 
 ment. 
 
 False imprisonment is imposing by force or threats 
 an unlawful and definite restraint upon one's freedom of 
 locomotion, or detaining one without legal authority. 
 
 § 63. The detention or restraint. — There need not 
 be an actual touching of the person. If the person sub- 
 mits upon command or threats, and believes he is under 
 restraint, it is a sufficient imprisonment. The restraint 
 must, however, be complete. If one is prevented from 
 moving in one direction only it is not imprisonment, nor 
 is it if he is prevented from moving in every direction 
 except one. So long as there is any reasonable path 
 known to be left open and free to him, a person can not 
 
 56
 
 § 65] FALSE IMPRISONMENT 57 
 
 be said to be imprisoned. But it is immaterial whether 
 the boundaries of the imprisonment be large or small. 
 
 § 64. The unlawfulness of the restraint. — To con- 
 stitute a legal wrong it is necessary that the imprisonment 
 be unlawful. For determining what restraints are unlaw- 
 ful, the shorter inquiry is, what restraints does the law 
 allow? All others will be legal wrongs. 
 
 Lawful restraint may be, (1) without legal process; 
 (2) with legal process.. 
 
 § 65. Lawful restraint without legal process. — In 
 some cases the law deems it less productive of mischief 
 to allow a person by his own act to restrain another 
 than to require him to resort to legal proceedings. The 
 reason lies in the ineffectiveness of legal proceedings 
 under the circumstances, and in the necessity for prompt 
 action. Order and peace are better subserved by the 
 individual act than by the tardy redress of legal proceed- 
 ings. 
 
 A parent may impose restraint upon his child. 
 
 A teacher acting in loco parentis may restrain a pupil, 
 subject, however, to the control of the parent. 
 
 A guardian of the person of a ward may exercise 
 restraint. 
 
 A shipmaster may restrain members of his crew or 
 passengers to preserve discipline and order. 
 
 Military officers, in time of war, may of course re- 
 strain the captured enemy, spies and any persons infring- 
 ing the rules of war, or suspected of doing so. In time 
 of peace they may impose restraint upon those who are 
 under military control, for military offenses, but they 
 may not restrain others. 
 
 One who is bail for another may generally, by fol-
 
 58 ELEMENTARY LAW [§ 66 
 
 lowing the procedure of the statute, himself arrest and 
 restrain his principal. 
 
 Any person may restrain another who is dangerous 
 from insanity or intoxication, but is bound without delay 
 to surrender the dangerous person to the officers of the 
 law. 
 
 A peace officer may without a warrant arrest and 
 restrain a person: (1) To prevent breach of the peace 
 in his view. (2) For a felony or misdemeanor if com- 
 mitted in his view, but not far a mere misdemeanor 
 committed out of his view. (3) For a past felony, pro- 
 vided he has reasonable grounds for believing the arrested 
 person committed a felony. And he is justifiable, even 
 though in fact the arrested person is innocent, or even 
 though in fact no felony had been committed. 
 
 A private person may without legal proceedings arrest 
 and restrain another: (1) To prevent breach of the 
 peace in his view. (2) For a felony, whether past or in 
 his view, provided a felony has been actually committed, 
 and he has reasonable grounds for believing the person 
 arrested to be guilty. He makes the arrest at his peril, 
 however, and if no felony has been committed, he will 
 be held liable. 
 
 Where the arrest and restraint is for a felony or 
 misdemeanor, the person arrested must be taken before a 
 magistrate within a reasonable time, or the imprisonment 
 can not be justified. In all cases, the restraint exercised 
 must be reasonable, and if it becomes excessive, the per- 
 son restraining is guilty of a legal wrong. It is, however, 
 doubted whether a parent can ever be civilly liable for 
 damages to his child, on account of an excessive restraint, 
 although he may be criminally liable therefor. 
 
 § 66. Lawful restraint under legal process. — After 
 judgment of insanity, a warrant in proper form is a justi-
 
 § 67] FALSE IMPRISONMENT 59 
 
 fication for the restraint of the insane person, even after 
 the person be in fact restored to sanity. Judges within 
 the Hmits of their jurisdiction are never civilly liable for 
 causing the restraint of a person, even where they are 
 guilty of error, or abuse of their power. This rule rests 
 upon public policy, it being deemed safer that judges shall 
 be free from any fear of private suit, and that redress 
 be left wholly to the state. But where judges act wholly 
 without jurisdiction, they are civilly liable to the person 
 restrained, if they have acted knowingly and maliciously. 
 Courts of limited jurisdiction are held to stricter 
 accountability, and are bound to know and not to exceed 
 the limits of their jurisdiction. So that while judges of 
 general jurisdiction, acting without or beyond jurisdiction, 
 are not liable so long as they act in good faith, judges 
 of limited and inferior jurisdiction are liable for acts in 
 excess of jurisdiction, whether in good faith or not. 
 
 § 67. Officers. — Officers who make arrests upon 
 legal process must, in order to justify such arrests, be 
 able to show: (1) That the process was issued by a 
 court having jurisdiction of such cases. (2) That there 
 is nothing on the face of the process, apprising the officer 
 that no authority existed in the particular case. (3) That 
 he acted reasonably, promptly and moderately, in the exe- 
 cution of the process. 
 
 All persons, whether parties or attorneys, who procure 
 the issuance of illegal process, under which arrest is made, 
 are liable to the person arrested. But the liability will not 
 be on the ground of false imprisonment, except where the 
 process procured is extrajudicial, or in other words is 
 not a valid process. If the process is valid, there is no 
 liability for false imprisonment, even though the process 
 be procured by a malicious and false statement of the 
 facts. The remedy in the latter case is by an action far
 
 60 KLEMENTARY LAW [§68 
 
 malicious prosecution or abuse of process, which will 
 be considered hereafter, 
 
 § 68. Remedy. — The person arrested may main- 
 tain an action for damages against the wrongdoer, and 
 is entitled to recover all proximate damages. He may 
 recover compensatory damages, and as elements of such 
 damages the juiy may consider all expenses reasonably 
 incurred to procure discharge, including reasonable 
 attorney's fees in the former proceeding, loss of time 
 and employment, loss by interruption of business, bodily 
 and mental suffering, the sense of shame and humiliation, 
 the loss of or injury to honor, reputation and social 
 position. 
 
 In addition to compensatory damages, the person 
 illegally restrained may recover exemplary or punitive 
 damages when the act was done maliciously or with 
 undue violence. But exemplary damages can not be 
 recovered when the act complained of is punishable 
 criminally. 
 
 § 69. Privilege from arrest. — Upon grounds of 
 public policy the law declares persons under certain cir- 
 cumstances to be free from arrest. 
 
 Ambassadors and representatives of foreign powers 
 are exempt from local jurisdiction, not only in civil but 
 criminal cases, the fiction being that they carry with them 
 the territory and jurisdiction of their own countries. The 
 exemption extends to the family, secretaries and servants 
 of the foreign representative. But the privilege may be 
 waived and local jurisdiction may be submitted to. 
 
 By the Constitution of the United States and of the 
 states, members of the legislature are exempt from ar- 
 rest, except for treason, felony or breach of the peace, 
 while, attending the sessions of the legislature, and for
 
 §70] FALSI' IMPRISON MKNT 61 
 
 a reasonable time before and after, while going to or 
 from the same. 
 
 Parties litigant, witnesses, attorneys, judges, jurors 
 and other officers of court are exempt from arrest on 
 civil process while attending in court, and while going to 
 and from the same. In most states voters, while going 
 to and from the polls, are privileged from civil arrest. 
 In some states women are privileged from civil arrest. 
 
 A civil arrest is the lawful apprehension of a person 
 to answer a demand in a civil action. 
 
 § 70. Remedy for arrest of privileged persons. — • 
 
 The privilege from arrest may always be waived by the 
 privileged person. It follows, that the arrest is not 
 wrongful until the person claims his privilege and applies 
 for his discharge. This he may procure by application 
 to the court issuing the process or by writ of habeas 
 corpus. In some cases where the privilege is for the 
 benefit of other persons, as in case of witnesses, any one 
 interested may secure the discharge, or the court may act 
 on its own motion.
 
 CHAPTER X 
 
 MALICIOUS PROSECUTION 
 
 Sec. Sec. 
 
 71. Elements of the wrong. 75. Malicious prosecution of 
 
 72. The malicious motive. civil actions. 
 
 73. Want of probable cause. 16. Malicious abuse of process. 
 
 74. Proceedings must have ter- 11 . Remedy. 
 
 minated. 
 
 § 71. Elements of the wrong. — It is every man's 
 legal right to be free from any unjust legal proceedings, 
 and, strictly speaking, every suit or legal proceeding that 
 fails is an infringement of that right. But it is not every 
 unsuccessful suit that will give the person sued a right to 
 recover damages therefor. The due enforcement of the 
 law requires that honest litigants shall not be deterred 
 by the fear of liability for malicious prosecution from 
 asserting their claims civilly, nor from the praiseworthy 
 work of bringing offenders to justice. Therefore the 
 wrong from unfounded legal proceedings is through 
 motives of public policy limited to such proceedings as 
 are instituted maliciously and without probable cause 
 therefor. Furthermore, the law does not favor the 
 maintenance of a second action during the pendency of 
 another in which precisely the same questions are involved. 
 The proceeding complained of as a malicious prosecution 
 may result in a judgment against the party charged, and 
 when such result follows, the judgment is generally a 
 conclusive adjudication that there was sufficient cause 
 for the proceeding. The law does not, therefore, permit 
 an action for malicious prosecution until after the 
 termination of the proceeding complained of, and this 
 
 62
 
 § 73] MALICIOUS PROSECUTION 63 
 
 termination must be other than by a vahd judgment 
 against the party charged, otherwise it might happen that 
 a prosecuting witness would be held liable in damages 
 for instituting a proceeding without probable cause, and 
 afterward in the proceeding complained of the criminal 
 might be convicted upon evidence beyond a reasonable 
 doubt. Therefore, in order that a plaintiff may main- 
 tain an action for malicious prosecution, he must establish 
 the concurrence of three things, 1, the malicious motive; 
 2, the absence of probable cause; 3, the proceeding must 
 have terminated. If he fails to establish any one of 
 these three elements his action can not prevail. 
 
 § 72. The malicious motive. — This does not nec- 
 essarily mean hatred, ill will or revenge. By malice here 
 is meant any direct or indirect motive of wrong. It may 
 be any motive other than that of simply bringing the 
 supposed offender to justice. So, if the object of 
 instituting criminal proceedings be shown to be to compel 
 a person to pay a debt or to surrender property, there is 
 malice in the legal sense. Malice may be inferred from 
 the recklessness or gross negligence of failing to make 
 proper investigation before beginning the proceeding. It 
 may be inferred from the entire absence of probable 
 cause, without other evidence; for it is inconceivable that 
 one can act with good faith in such a case, unless he has 
 some probable cause. The question of the existence or 
 nonexistence of malice is one of fact for the jury, 
 although it is the province of the court to decide whether 
 there is any or sufficient evidence of malice. 
 
 § 73. Want of probable cause. — Probable cause is 
 the apparent existence of such facts and circumstances a? 
 would excite the belief in a reasonable mind that the per^ 
 son charged is guilty. It is essential that the prosecutor
 
 64 ELKMliNTARV LAW [§ 73 
 
 shall have entertained an honest belief in the guilt. 
 Although there might otherwise be probable cause from 
 suspicious circumstances, yet if the prosecutor knew or 
 believed the accused to be innocent he would not have 
 probable cause for making the charge. It matters not 
 that facts actually existed which would amount to 
 probable cause, such facts must be known to the prosecu- 
 tor at the time of the prosecution in order to avail him. 
 The mental attitude of the prosecutor is in such case 
 one of the facts and circumstances to be considered in 
 determining whether he had probable cause. It is not 
 enough, however, that the prosecutor entertained an 
 honest belief in the guilt of the accused. Such belief 
 must have been upon reasonable grounds, and mere float- 
 ing rumors are not generally considered a sufficient 
 foundation. It makes no difference that the accused was 
 in fact innocent; the question is not as to the innocence 
 of the accused, but whether there was probable cause 
 for believing him to be guilty. Absence of probable cause 
 can not generally be inferred from the mere fact that the 
 proceeding was actuated by ill will. There must be other 
 evidence. For, a belief upon probable grounds that the 
 accused was guilty of offense would almost inevitably 
 excite an ill will toward him, and hence the existence 
 of ill will is equally consistent with the presence as with 
 the absence of probable cause. But where the malice 
 consists in the wrongful use of the legal proceedings for 
 a collateral and improper purpose, it is competent evi- 
 dence of the absence of probable cause; for such evidence 
 would go to the question as to whether the prosecutor 
 honestly believed the accused guilty. The fact that the 
 prosecutor laid the facts and circumstances before counsel 
 learned in the law, and acted upon the opinion given, is 
 competent evidence, both of the absence of malice and 
 the existence of probable cause, but is not conclusive. In
 
 5] MAl.lL'iOLb I'KOSi'XUTlON 65 
 
 order to afford protection, there must have been a full 
 disclosure made to an attorney in regular practice. Of 
 course, it must have been in good faith, for an attorney 
 and client will not be permitted to use such a defense as 
 a cloak for their collusive wrong. 
 
 A judgment of conviction in the proceeding com- 
 plained of is generally conclusive evidence of the existence 
 of probable cause, even though an appeal be taken, result- 
 ing in a new trial and subsequent acquittal. But if the 
 conviction was secured by fraud or perjury, it will not be 
 conclusive evidence. 
 
 An acquittal in the proceeding complained of is 
 competent, but not conclusive evidence of the absence of 
 probable cause. In defense to the action for malicious 
 prosecution, it may be shown that the charge is true, 
 notwithstanding the acquittal. For, an acquittal may 
 have resulted from failure to establish the charge by 
 evidence beyond a reasonable doubt, and yet the evidence 
 may be sufficient to establish the charge by a preponder- 
 ance. 
 
 § 74. Proceedings must have terminated. — Gen- 
 erally such termination must have been otherwise than 
 by a judgment against the person charged, but it need 
 not have been by a judgment in favor of the person 
 charged. It is a sufficient termination if the grand jury 
 ignores a bill, where a person has been bound over; or 
 if a nolle prosequi be entered ; or if an indictpient be 
 quashed; or if the accused be discharged from bail or 
 imprisonment. All that is necessary is that the proceed- 
 ing shall have been so disposed of that it can not be 
 revived, and that the prosecutor, if he intends to proceed 
 further, must begin anew. 
 
 § 75. Malicious prosecution of civil actions. — The 
 
 S — Elem. Law.
 
 66 ELEMENTARY LAW [§76 
 
 action is usually brought for the malicious prosecution 
 of some criminal proceeding. But it is sometimes also 
 allowed on account of civil suits upon the same principles. 
 At common law the action was permitted for any 
 proceeding, civil as well as criminal, upon termination in 
 favor of the defendant, but when by statute costs were 
 given to the prevailing party, the right to maintain an 
 action for malicious prosecution of civil suits was limited 
 to such as involved the arrest of the person, the seizure 
 of his property, or other such special injury. And this is 
 the rule that prevails in many states, . among which are 
 New Jersey, Pennsylvania, Maryland, Iowa and Georgia. 
 Other states have followed the common law as it 
 existed prior to the statutes giving costs; among these 
 are New York, Indiana, Vermont, Connecticut, Kentucky, 
 Kansas, Illinois and Missouri. 
 
 § 76. Malicious abuse of process. — It is not only 
 for proceedings maliciously begun that the law affords 
 redress, but also for any process, either civil or criminal, 
 though lawfully begun, if it is made use of for a purpose 
 not justified by law. For example, a judgment may be 
 lawfully recovered, but if after payment of the same, the 
 creditor maliciouslv cause execution to be issued thereon 
 and property to be seized, this is an abuse of process. 
 Or, an execution may be lawfully issued, yet if an 
 excessive levy be made thereon it is an abuse of process. 
 It is generally necessary in order to sustain an action for 
 abuse of process to prove both malice and want of 
 probable cause, though if it be shown that the abuse was 
 for the purpose of accomplishing some collateral wrong- 
 ful purpose malice and want of probable cause may be 
 inferred. 
 
 § 77. Remedy. — The remedy for malicious prose-
 
 ^ 77] MAUCIOUS PROSECUTION 67 
 
 s 
 
 s 
 
 cution is an action for damages, which may be brought 
 against any one who commences or procures another to 
 commence such prosecution. Pubhc officers, however, 
 who are charged with the duty of bringing such prosecu- 
 tions, will be held liable only upon very clear proof of 
 malice. 
 
 The damages recoverable may be for all expenses, 
 including attorney's fees in the proceeding complained 
 of, suffering mental and physical, loss of time and busi- 
 ness, injury to property, injury to reputation and honor, 
 and the loss of social position. Where the prosecution 
 was with great malice or other aggravated circumstances, 
 exemplary or punitive damages may be allowed in addi- 
 tion to the compensatory damages. By way of mitiga- 
 tion of the damages it may be shown that the plaintiff 
 had a bad character, that his conduct was such as to 
 arouse suspicion, that any reasons for probable cause 
 existed though insufficient to establish it ; also anything 
 that goes to rebut malice. But exemplary damages can 
 not be recovered where the acts complained of are pun- 
 ishable criminally.
 
 CHAPTER XI 
 
 DEFAMATION 
 
 Sec. 
 
 
 Sec. 
 
 78. 
 
 Definition of defamation. 
 
 92. 
 
 79. 
 
 The right to reputation. 
 
 93. 
 
 80. 
 
 Libel and slander. 
 
 94. 
 
 81. 
 
 Slander. 
 
 95. 
 
 82. 
 
 Slander imputing crime. 
 
 96. 
 
 83. 
 
 Slander imputing disease. 
 
 97. 
 
 84. 
 
 Slander affecting one in 
 his office, profession or 
 
 98. 
 
 
 trade. 
 
 99. 
 
 85. 
 
 Slanders actionable only 
 by reason of special 
 
 100. 
 
 
 damages. 
 
 101. 
 
 86. 
 
 Libel. 
 
 
 87. 
 
 Definition. 
 
 102. 
 
 88. 
 
 Newspapers. 
 
 
 89. 
 
 Publication. 
 
 103. 
 
 90. 
 
 Construction. 
 
 104. 
 
 Malice. 
 
 Justification. 
 
 Privilege. 
 
 Absolute privilege. 
 
 Legislative proceedings. 
 
 Judicial proceedings. 
 
 Naval and military mat- 
 ters. 
 
 Qualified privilege. 
 
 Matters of public interest 
 and concern. 
 
 Communications made un- 
 der duty. 
 
 Communications in self- 
 defense. 
 
 The remedy. 
 
 The damages. 
 
 § 78. Definition of defamation. — Defamation is a 
 false statement or communication to the mind of a third 
 party which either subjects a person to pubHc ridicule, 
 contempt, hatred or disgrace, or which tends to injure 
 him in his office, calling, business, trade or profession. 
 
 § 79. The right to reputation. — The theory upon 
 which an action is given for defamation is that the per- 
 son was entitled to a good reputation, that a false state- 
 ment was maliciously made affecting the reputation, and 
 that damages resulted therefrom. Although upon general 
 principles the plaintiff is bound to affirmatively establish 
 all of the elements constituting his cause of action, it 
 
 68
 
 § 80] DEFAMATION 69 
 
 would, in nearly all cases of defamation, be found highly 
 inconvenient to enforce such principles strictly. For, the 
 nature of the charge may be such that no evidence is 
 attainable as to its truth or falsity ; or, it may be impos- 
 sible to expressly show the damage done; or, a stranger 
 in the community, having acquired no reputation as yet, 
 could prove no actual damage, and might be wholly 
 unable to show how he would be actually damaged in 
 the future. Taking into consideration these difficulties, 
 and to the end that justice may not miscarry, the law 
 aids the person defamed by making certain presumptions 
 in his favor and throwing the burden upon the wrong- 
 doer to produce evidence to justify or excuse himself. 
 Therefore, in the absence of evidence, the law presumes: 
 (1) That every one has a good reputation. (2) That 
 every charge against reputation is false. (3) That every 
 false charge is maliciously made. (4) Where injury 
 would naturally result, that it has actually resulted. 
 
 § 80. Libel and slander, — The law divides defama- 
 tions into two classes. False defamatory words, if 
 written and published, constitute libel; if published orally, 
 slander. Libel is communicated through the medium of 
 eyesight; slander through the medium of hearing. By 
 reason of the permanent and deliberate character of libel, 
 it is regarded as of a more aggravated nature than a 
 mere slander, which may be spoken in heat and excite- 
 ment, and may be more easily effaced from the memory 
 of the hearers. 
 
 While there is much that is common to both libel 
 and slander, there are some points in which they radically 
 differ. It will be convenient to consider each separately, 
 in so far as they are variant, and afterwards to note the 
 principles common to both.
 
 70 ELEMENTARY I,AW [§ 81 
 
 §81. Slander. — False defamatory words spoken of 
 a person are actionable : ( 1 ) Where they charge an indict- 
 able offense, which involves moral turpitude or would sub- 
 ject the person to an ignominious punishment. (2) Where 
 they charge a person with having a contagious or infectious 
 disease, tending to exclude him from society. (3) Where 
 they are spoken of a person in the way of his office, trade 
 or profession. In these three classes, and no others, the 
 law presumes without proof that the reputation has been 
 injured. They are said to be actionable per se. (4) This 
 leaves a fourth class, in which the charge is such that 
 damages can not be said to be the usual and natural 
 result, and therefore the law does not presume them, but 
 requires the person injured to allege and prove the special 
 damages suffered. 
 
 § 82. Slander imputing crime. — It is necessary that 
 the acts charged be such as are indictable. If not in- 
 dictable, the charge is not actionable per se under this 
 class, unless so declared to be by statute. 
 
 By ignominious punishment is meant any corporeal 
 punishment, as death, whipping or imprisonment. Punish- 
 ment by fine only is not deemed ignominious. But if the 
 penalty be in the alternative, by fine or imprisonment, 
 the offense is punishable ignominiously. 
 
 What does and what does not involve moral turpi- 
 tude, it is not easy to define. When the case arises, it 
 is usually clear. It may be stated to be whatever is 
 shocking to the moral sense of the community. Slander 
 imputing such offense is actionable per se, even though 
 the offense be punishable by fine only. 
 
 Where crime is charged, it is immaterial whether it 
 be stated that the party has been punished for such 
 crime, or that he is guilty and liable to be punished. If 
 false, the charge is equally actionable per se.
 
 § 85] de;famation 71 
 
 Proper to be included in this class are certain charges 
 which are declared by statute to be actionable per se, in 
 the same manner as charges of crime. These are usually 
 charges affecting the chastity of a woman, and charges 
 of certain disgraceful acts by either a man or a woman. 
 In some states the charge of unchastity against a man is 
 also made actionable per se. 
 
 The imputation of crime need not be in language that 
 technically describes the crime. It is sufficient if the 
 words were meant and understood to convey such imputa- 
 tion. 
 
 § 83. Slander imputing disease. — The diseases in- 
 tended by this class are such as are loathesome or involve 
 moral disgrace. A charge that one has the small-pox is, 
 however, not deemed to be actionable per se. It is 
 essential that the disease be charged as existing at the 
 time. If the statement be made in the past tense, it is 
 not actionable per se under this class. 
 
 § 84. Slander affecting one in his office, profession 
 or trade. — It is essential that the occupation be one 
 that is recognized by the law as legitimate, and that the 
 slander touch one in the capacity of his occupation. 
 Hence it is not actionable per se to say of a gambler that 
 he cheats in cards. But it is actionable per 3e to say of 
 an attorney that he disclosed professional communica- 
 tions; of a clergyman that he is a drunkard; of a physi- 
 cian that he is guilty of malpractice; of a judge that he 
 takes bribes ; of a mechanic that he is incompetent. It 
 is also essential that the charge be made while the person 
 is holding or pursuing the occupation. If made after- 
 ward it is not actionable per se. 
 
 § 85. Slanders actionable only by reason of spe-
 
 72 ELEMENTARY LAW [§ S6 
 
 cial damages. — A satisfactory enumeration of such 
 cases can not be made. Any defamatory words that 
 produce actual damage may give a cause of action. 
 Words are said to be defamatory in this sense when they 
 hold a person up to public ridicule, contempt, hatred or 
 disgrace. The damages must, however, be such as are 
 deemed to be the proximate result of the slander. If 
 the damages are remote there is no cause of action. It 
 is essential that the damages be pecuniary or material, 
 such as the loss of a marriage, loss of employment, loss 
 of profits or injury to business. ]\Iere mental anxiety 
 and distress are not such damages as will support the 
 action. 
 
 § 86. Libel. — A libel need not necessarily be in 
 writing or print. Any caricature, scandalous painting, 
 drawing or effigy may constitute a libel. Any spoken 
 charge that is actionable per se will if published in writ- 
 ing be a libel. Hence, it is libelous to charge in writing, 
 crimes, diseases or scandals affecting occupations. But 
 libel goes further, its wider range being based upon the 
 deliberate nature of the act, its permanent form and the 
 greater damage caused. 
 
 § 87. Definition. — Any false and defamatory print- 
 ing, writing, sign, picture, representation or effigy, tend- 
 ing to expose any person to public hatred or ridicule, 
 deprive him of the benefits of public confidence or social 
 intercourse, or designed to blacken and vilify the memory 
 of a deceased person and tending to scandalize and dis- 
 grace his relations and friends, is a libel. 
 
 It is not necessary to prove special damages in any 
 action for libel. If there" is a libel at all, it is a libel 
 per se. 
 
 It is not necessary that the libelous language impute
 
 § 89] DEFAMATION 73 
 
 crime or even disgraceful conduct; it is sufficient if the 
 person is rendered contemptible or ridiculous. 
 
 As to charges affecting one's occupation, or imputing 
 diseases, it is not essential in libel that tliey be made 
 in the present tense, as is the case in slander. To impute 
 by libel past misconduct or past diseases may also be 
 actionable. 
 
 § 88. Newspapers, — The constitutional guaranty of 
 freedom of the press is often misconstrued, and it is 
 popularly supposed that newspapers by virtue of their 
 public nature are not held to so strict accountability for 
 libel as mere private individuals. The law recognizes no 
 such distinction. Freedom of the press means that there 
 shall be no censorship by those in authority. Any man 
 is free to write or publish whatever he chooses of 
 another, but subject to the legal consequences if the pub- 
 lication be defamatory. Newspaper and individual must 
 defend upon the same legal grounds. 
 
 We pass now to the principles common to both libel 
 and slander. 
 
 § 89. Publication. — It is essential, in order to give 
 an action for libel or slander, that the defamatory words 
 shall have been published. By publication is meant com- 
 munication to a third person. If the words be heard or 
 read only by the person against wliom they are directed, 
 there is no liability ; for his reputation, that is, the esti- 
 mation in which he is held by others, is not thereby 
 injured. And if such person repeat the words, or show 
 the letter to others, he has no cause of action, for the 
 publication was his own act. It is not necessary that the 
 author shall have intended publication, for he is liable 
 for its unintended publication if it happens through his 
 mistake or negligence. So if one shouts a slander he is
 
 74 ELEMENTARY LAW [§90 
 
 not liable if no one hears it, but he is liable if there is 
 a listener known or unknown. But the author is prob- 
 ably not subject to absolute liability. For instance, if 
 X writes a libel on Y, addresses it to him and locks it 
 up in his desk and a thief breaks into his office and 
 steals and reads the letter, the author would not be liable. 
 However, should X give the letter to Z thinking him to 
 be Y, X would be liable for the publication since it was 
 published through his mistake. Likewise, if X address' 
 a libel to Y and it is known that it is possible or probable 
 that the letter will be opened and the libel read by Y's 
 private secretary and the secretary does so, X is liable 
 to Y, for the publication may then be chargeable to his 
 negligence. 
 
 Where two persons composed a libel together and sent 
 it to the plaintiff, it was held to be a publication, the 
 part that each took being a publication in the hearing and 
 knowledge of the other. Every repetition of a slander 
 or libel is a fresh publication, and gives a cause of 
 action. 
 
 The law regards communications between husband 
 and wife as privileged, therefore communication by either 
 to the other of defamatory matter against others is not 
 deemed to be a publication. But if such communication 
 be in the hearing or to the knowledge of a third person, 
 there is a publication. A slander or libel against either 
 a husband or wife, if heard or read by the other, is a 
 publication. 
 
 § 90. Construction. — The general rule is that 
 words are to be understood according to their plain and 
 natural import, and when the language is clear and 
 unambiguous the court will not, ordinarily, allow the 
 meaning to be varied by testimony that the author 
 intended or the hearers understood them in a different
 
 § 90] DEFAMATION 75 
 
 sense. For, ordinarily, the presense or absence of an 
 intention to injure can not change the effect of the 
 language; and, on the other hand, the fact that some 
 persons misunderstood the language ought not to deter- 
 mine its quality, good or bad. In the large majority of 
 cases, however, there is room for question whether the 
 language is to a greater or less degree injurious in its 
 meaning. Wherever by reason of any local or provincial 
 usage words have an unusual meaning, or wherever by 
 reason of any special circumstances the language has a 
 peculiar effect, the plaintiff may declare what such mean- 
 ing or innuendo is, and such facts may be given in evi- 
 dence and the language construed in the light of them. 
 Such facts may be shown whether the result be to estab- 
 lish either an innocent or a harmful meaning. In cases 
 where the language is ambiguous in any respect, the law 
 has undergone some modifications. In the earlier actions 
 the rule was that the words were to be construed in the 
 most favorable sense, the theory being that such con- 
 struction would suppress litigation. Later, it was held 
 that words should be taken in an unfavorable sense, it 
 being supposed that, by affording legal remedy, resort to 
 personal violence for redress would be prevented. Still 
 later the well-recognized rule was that the courts should 
 affix to the words a plain and natural meaning. The 
 modern rule, however, sustained by the weight of 
 authority and founded in better reason, is that where 
 there is any ambiguity in the language the words may 
 be construed in the reasonable sense in which the hearers 
 or readers actually understood them, and to that end 
 the testimony of the hearers or readers is received, to- 
 gether with evidence of all the surrounding circumstances. 
 The meaning actually intended by the author is im- 
 material upon the question of liability, except so far as 
 he may have made it apparent at the time. If his
 
 7(i ELEMENTARY LAW [§91 
 
 ambiguous language is intended harmlessly, but is rea- 
 sonably understood in an injurious sense, he is respon- 
 sible. And if the language is not defamatory and is not 
 so taken, there is no injury, although the author desires 
 and intends there should be. 
 
 § 91. Certainty. — The rule of law is that there is 
 no liability unless there is certainty, ( 1 ) as to the person 
 charged, (2) as to the imputation made. The reference 
 must be to some ascertained or ascertainable person, who 
 must, of course, be the plaintiff. The person may be 
 ascertained either from the language itself or from the 
 surrounding circumstances which give peculiar point to 
 the language. So, where the reference is to a class of 
 individuals and not to any member, the circumstances 
 may be such that the jury can determine which was 
 meant. But to merely charge as to two witnesses who 
 have testified contradictorily, "one of you two has com- 
 mitted perjury," is not actionable, for it is not and can 
 not be certainly applied to either. 
 
 The imputation made must be certain, or capable of 
 being made certain. The words need not, however, be 
 technically exact as a description of the charge. Any 
 words that distinctly assume guilt in the party charged 
 are sufficient. But it is not essential that the words be 
 afBrmative. They may be actionable where the form of 
 the language is interrogative; and it is conceivable that 
 a statement in the negative may be so worded or 
 emphasized as to convey the meaning of an affirmative 
 charge. In determining whether an imputation is certain, 
 it is proper to consider not only the words, but all the 
 surrounding circumstances that may give especial force 
 to language used. 
 
 § 92. Malice. — By most law writers and by the
 
 § 92] DEFAMATION 77 
 
 courts it is stated that malice is an essential ingredient 
 of actions for libel or slander. But, as in cases for 
 malicious prosecution, the term malice has a peculiar 
 meaning. It is not synonymous with hatred or ill will. 
 Malice may, in a legal sense, exist where in fact the 
 defendant's real motive was to benefit the plaintiff, for 
 example, where a newspaper publishes the fact that a 
 defamatory charge has been made, and adds the comment 
 that the publisher believes it to be false. 
 
 Malice is said to be either express or implied; and the 
 distinction is clearly marked. Radically different prin- 
 ciples control. As the equivalents of express and implied 
 malice, the words, "malice in fact," and "malice in law," 
 are also used. 
 
 Some confusion in the law has resulted from the 
 failure to keep the distinction clear. The courts have 
 often used the word malice without qualifications to 
 express either meaning, and some decisions have there- 
 fore been misleading. 
 
 Malice in law or implied malice is such as the court 
 infers without evidence of malice. The inference is made 
 from the fact of the falsity of the charge, in accordance 
 with the presumptions heretofore noted. This inference 
 is not permitted by the law to be overcome by evidence 
 that the motive was not in fact malicious. It can be 
 overcome only by showing that the words complained of 
 were published upon what is called a privileged occasion. 
 On account of this inflexible rule of law, some text- 
 writers have sought to establish the proposition that there 
 is but one kind of malice, that is, express malice, or 
 malice in fact, and that instead of holding that there is 
 "malice in law" in certain cases, the courts should hold 
 that in such cases malice is not essential. The results, 
 however, are the same, and the courts have declined to 
 adopt the nomenclature urged by these text-writers.
 
 78 ELEMENTARY LAW [§93 
 
 Express malice, or malice in fact, includes actual 
 malice in its popular acceptation. As an eminent judge 
 said, "It means a wrong feeling in a man's mind." Any- 
 indirect or dishonest motive which induces one to defame 
 another may be malice. Gross negligence or wantonness 
 in the disregard of another's rights may be sufficient 
 evidence to warrant a finding that malice existed. 
 
 Actual malice may be shown by intrinsic evidence, 
 namely, the kind of language used, its exaggerated 
 character, the manner of its publication; or it may be 
 shown by extrinsic evidence, namely, by any facts not 
 contained in the publication itself, as for instance, by 
 other publications, subsequent repetitions, refusal to re- 
 tract, the existence of an old grudge. Actual malice is 
 always a question to be determined by the jury, and not 
 by the court. 
 
 By reason of the presumptions in plaintiff's favor, 
 above referred to, it results that the questions arising are 
 usually as to the sufficiency of the facts to afford a 
 defense. The defenses will now be considered. 
 
 § 93. Justification. — In libel and slander this word 
 means only that the charge made is true. The presump- 
 tion being that a defamatory charge is false, the burden 
 falls upon the defendant to prove, if he can, the truth 
 of the charge. And the uniform rule is that if the 
 defendant wishes to avail himself of this defense he must 
 affirmatively plead it. This is called a plea or answer of 
 justification. The defendant may always defend by 
 showing the truth of the imputation, and the defense, if 
 established, is complete; for there can be no legal wrong 
 of defamation by speaking the truth of any one. Under 
 a plea of justification, however, the defendant miist show 
 that not only the words but their meaning, as alleged, 
 are true. If he disputes that the words mean what they
 
 § 94] DEFAMATION 79 
 
 are alleged to mean, he does not do so by way of justifi- 
 cation, but to that extent by denial. 
 
 It is a principle peculiar to civil suits for libel and 
 slander that where the defamatory charge is that crime 
 has been committed, it is necessary, in order to sustain 
 a plea of justification, to prove the truth of the charge 
 by the same degree of proof that would be required to 
 convict the party if under indictment for the crime. In 
 other words, justification of a charge of crime must be 
 proved beyond a reasonable doubt. But if no crime is 
 charged the justification may be established by a mere 
 preponderance of evidence. These rules have been modi- 
 fied by statute in some states. 
 
 Where justification is the issue, it is wholly im- 
 material to the question of liability whether the defend- 
 ant acted maliciously or not. If the charge is true, the 
 defense is complete, even though there was gross malice; 
 and if the charge is found not true, the defendant is not 
 relieved from liability by the fact that he acted in good 
 faith. The only effect of evidence as to defendant's 
 motive in such case can be to enhance or diminish the 
 amount of damages recovered. 
 
 § 94. Privilege. — As has been said, the truth is 
 a complete defense in libel and slander. Wherever 
 truth is shown the action fails. The question now arises, 
 when does the law excuse a defamatory charge that is 
 false? Upon grounds of public policy, common con- 
 venience and the general welfare of society, there must 
 be immunity upon certain occasions. Statements made 
 upon such occasions are called privileged communications. 
 They are divided into two classes and are said to be 
 of either: (1) Absolute privilege. (2) Qualified 
 privilege. It is to be noted that the privilege attaches 
 to the occasion, and not to the matter stated, for, if the
 
 80 EI.EMENTAKY LAW [§ 95 
 
 same matter be afterward repeated upon an unprivileged 
 occasion, it has no protection. 
 
 § 95. Absolute privilege. — The occasions of abso- 
 lute privilege are few, and the tendency of the courts is 
 to narrow rather than enlarge them. They rest upon 
 the ground that it is advantageous to the public interests 
 that persons on such occasions should not be fettered in 
 their statements. The cases of absolute privilege fall 
 under three heads: (1) Legislative proceedings. (2) 
 Judicial proceedings. (3) Naval and military affairs. 
 
 § 96. Legislative proceedings. — No member of 
 either house of congress, or of either house of the state 
 legislature, is in any w^ay responsible in a court for any- 
 thing he may say in such house. This rests upon the 
 provisions common to the constitutions of the United 
 States and several states that, "for any speech or debate 
 in either house, they shall not be questioned in any other 
 place." The privilege, however, is confined to the walls 
 of the house, w^hich includes its committee-rooms. If 
 the member publish the speech to the world, he is liable 
 as any other individual would be. The absolute privilege 
 does not extend to inferior lesfislative bodies. 
 
 -b' 
 
 § 97. Judicial proceedings. — Everything that a 
 judge says on the bench, or a witness on the stand, or 
 counsel in trying and arguing a cause, is absolutely 
 privileged, so long as it is pertinent to the inquiry. 
 
 A judge of a court of general jurisdiction is free to 
 say anything concerning a case, while the case is being 
 tried, no matter what his knowledge or motive is, and 
 whether the statement is relevant or not. But a judge of 
 limited jurisdiction is not privileged, unless the statement 
 be relevant to the matter in hand. A witness on the
 
 § 98] DEFAMATION 81 
 
 Stand is not liable for any statement he may make, 
 whatever may be his knowledge or motive, provided such 
 statement is drawn out by questions, or, if volunteered, 
 is relevant or believed to be relevant to the case. For 
 any irrelevant matter, if volunteered from a malicious 
 motive, he may be held liable, and he may be held liable 
 for any statements made while not on the stand, whether 
 in or outside the courtroom. 
 
 Counsel in a cause may speak any words, however 
 defamatory and false, and whatever may be their knowl- 
 edge or motive, provided only that they are acting within 
 their instructions and their remarks are pertinent to the 
 case. They may draw any inference they wish from the 
 evidence. But they may not recklessly assert anything of 
 which they can give no evidence. 
 
 All pleadings, affidavits and papers in a cause are 
 privileged if pertinent. A New York court has said: 
 "Whatever may be said or written by a party to a judi- 
 cial proceeding, or by his attorney, solicitor or counsel 
 therein, if pertinent and material to the matter in con- 
 troversy, is privileged. * * * But this is the extent 
 of the privilege; for if a party or his agent will pass 
 beyond the prescribed limits to asperse and vilify another 
 by word or writing, he is without protection." 
 
 § 98. Naval and military matters. — All reports by 
 a naval or military officer to his superior, and all testi- 
 mony or argument in a court-martial, as well as all other 
 official reports of like character, are absolutely privileged. 
 In all cases of absolute privilege, the question is only 
 whether the defendant has brought himself within it. If 
 he has not, he is liable as any other person would be; 
 if he has, then the question of his malice is wholly im- 
 material. 
 
 6 — Elem. Law.
 
 82 ELEMENTARY LAW [§99 
 
 § 99. Qualified privilege. — It is an essential ele- 
 ment of all qualified privileges, that the communication 
 under it be made in good faith. No person is allowed 
 to take advantage of qualified privilege to vent his malice. 
 
 Whenever it is shown that the language complained 
 of was uttered upon a privileged occasion, the law ceases 
 to presume the existence of malice, and requires proof 
 that there was actual malice. As it is expressed, the 
 privileged occasion rebuts implied malice. It then be- 
 comes incumbent upon the plaintiff to prove that tlie 
 defendant was actuated by express malice — malice in 
 fact; and unless in such case the plaintiff does establish 
 the existence of malice in fact his action fails. Whether 
 a privilege exists is always a question of law for the 
 court; whether the defendant was actuated by the proper 
 motive is left to the jury. 
 
 In all cases of qualified privilege it is conclusive evi- 
 dence of actual malice to prove that the defendant knew 
 the charge to be false. For it is inconceivable that a 
 man can have an innocent motive in uttering a defam- 
 atory charge that he knows to be false. 
 
 Cases of qualified privilege may be grouped under 
 three heads: (1) Communications made in matters of 
 public interest and general concern. (2) Communica- 
 tions made to persons to whom the defendant owes a 
 duty to make communication. (3) Communications made 
 in self-defense. 
 
 § 100. Matters of public interest and concern. — 
 Anything that is of general concern to the inhabitants of 
 a town, city or community is what is thus privileged. 
 Though the matter be of only a local interest the rule 
 applies, so long as the matter is not merely of private 
 concern. All public institutions and their management, 
 all public entertainments, published books, pictures pub-
 
 § 100] DEFAMATION 83 
 
 licly exhibited, the architecture of public buildings may- 
 be freely criticised. All appeals to the public are subject 
 to honest criticism and the critic will not be liable for 
 false statements made. Whoever seeks notoriety or in- 
 vites public attention challenges public criticism and 
 must bear the burden of honestly made statements, even 
 though they may be erroneous. All public officials and 
 candidates for office may be freely criticised, provided 
 the criticism be made in good faith. 
 
 But whenever matters of general concern are com- 
 mented upon, the speaker or writer is bound to confine 
 himself to what is of public nature. If this limit is 
 transcended and private matters or private character 
 touched upon, no privilege can be claimed therefor. For 
 instance, though the official acts of an officer may in 
 good faith be commented upon, by reason or by ridicule, 
 even though the statements be in fact false and injurious, 
 yet if the critic should go beyond the public matter, and 
 falsely accuse the officer of a crime, it would affect him 
 privately, and no protection would be given. 
 
 Reports of judicial proceedings are upon matters of 
 public interest. Every fair and accurate report of judicial 
 proceedings is privileged, though false defamatory matter 
 be contained in it. The privilege does not attach, how- 
 ever, where the publication is prohibited by the court, 
 or where the matter is obscene; for in such case the 
 publisher is guilty of wrong in the very fact of publish- 
 ing, and will not be permitted to avail himself of a legal 
 protection for such wrong. The report to be privileged 
 must be substantially a fair account of what actually took 
 place in court. The reporter may not, however, select 
 damaging parts and omit the beneficial parts ; and he 
 has no privilege to comment on the evidence and give his 
 opinion of it. Indeed, if he mixes up comment with
 
 84 e;lementary law [§ 101 
 
 wliat would otherwise be a fair report, the privilege is 
 lost for the whole article. 
 
 Fair and accurate reports of proceedings of the legis- 
 lature stand upon the same footing, and are subject 
 to the same limitations, as in case of judicial proceed- 
 ings. No other reports are privileged. No privilege can 
 be claimed for reports of the doings of municipal legisla- 
 tures, public meetings, political meetings, or stockholders' 
 meetings, unless it is so provided by statute as it is in 
 some states. 
 
 § 101. Communications made under duty. — There 
 is no liability for honest mistakes, where an employer is 
 asked to give a statement regarding the character of a 
 servant. But there is no protection given,, if the false 
 statement be made from an improper motive, or if made 
 recklessly and wantonly. There is no privilege for 
 officious intermeddling, as where no inquiry has been 
 made, or where there is no duty to speak. 
 
 Answers made in good faith to inquiries about per- 
 sons with whom business dealings are contemplated are 
 protected even though they turn out to be false. Hence, 
 reports of mercantile agencies to their customers are 
 privileged, if made in good faith. 
 
 So, inquiries by and answ^ers to one interested in 
 discovering a wrongdoer, are privileged. Any relation of 
 confidence is sufficient to raise a duty to make communi- 
 cations, and if they are made in good faith they are 
 privileged. The following relations have been held to be 
 of the privileged character: Husband and wife, father 
 and child, brothers and sisters, guardian and ward, mas- 
 ter and servant, principal and agent, landlord and tenant, 
 lawyer and client, partners, and in one case it was held 
 that intimate friendship might be a sufficient ground.
 
 § 104] DEFAMATION 85 
 
 § 102. Communications in self-defense. — If the 
 statement complained of be one which has been invited 
 or requested by the plaintiff, it is privileged, even though 
 false, provided it be made in good faith. For example, 
 if the defendant had previously made the statement under 
 a privilege, and the plaintiff demands an explanation in 
 the presence of strangers, or if defamatory words had 
 been said by the defendant to the plaintiff alone, and 
 plaintiff afterwards bring a stranger and demand whether 
 defendant had used the defamatory words, such subse- 
 quent statements are deemed to be made in self-defense 
 and are privileged if in good faith. 
 
 § 103. The remedy. — The civil remedy for libel or 
 slander is an action for damages. The courts will not 
 interfere by injunction to restrain the publication of a 
 libel or slander, for the reason that it must first be 
 established before a jury whether the matter is or is not 
 actionable. But after a verdict for the plaintiff, a court 
 of equity may enjoin the subsequent repetitions of the 
 defamatory matter. 
 
 § 104. The damages. — Considered from the point 
 of view of the jury, the damages awarded may be: (1) 
 Contemptuous, as where the defendant has been techni- 
 cally guilty of defamation, but the jury think the plain- 
 tiff greatly in fault, and therefore assess the damages at 
 a nominal sum. (2) Substantial or compensatory, where 
 the jury aims to arrive at the actual injury suffered by 
 the plaintiff. (3) Exemplary or punitive, where the 
 jury seek to express their sense of the defendant's harsh 
 and malicious conduct by fining him in an amount beyond 
 the compensatory damages. 
 
 Considered from the judge's point of view the dam- 
 ages assessed may be either : ( 1 ) General damages^
 
 86 Ei,Kme;ntary law [§ 104 
 
 namely, the natural and probable consequences of the 
 false charge, which are presumed by the law without 
 evidence in all cases where the words are actionable per 
 se. (2) Special damages, namely, such as the law will 
 not infer, but requires to be established by evidence. 
 
 Wherever general damages are recoverable, special 
 damages may also be recovered if specially pleaded and 
 proved. Where a charge is not actionable per se, there 
 is no cause of action unless the special damages be 
 alleged and proved, and the recovery is limited to such 
 special damages. 
 
 The amount recoverable by the plaintiff as com- 
 pensatory damages may be larger or smaller according 
 to the evidence. Whatever goes to show the greater 
 extent of the injury is said to be in aggravation of dam- 
 ages; whatever goes to show the less extent of the injury 
 is said to be in mitigation of damages. 
 
 By way of aggravation, evidence may be received of 
 the social position and influence of both plaintiff and de- 
 fendant and their pecuniary circumstances so far as the 
 same may bear upon the influence exerted by the charge, 
 the publicity of the charge, the fact that it was wholly 
 unprovoked, and by some courts it is held that an unsuc- 
 cessful plea of justification may be considered in aggrava- 
 tion, though such is not the general rule. 
 
 By way of mitigation of damages, evidence may be 
 received that the words were spoken in passion or ex- 
 citement provoked by plaintiff, and hence all the injury 
 is not attributable to defendant's fault; that the defend- 
 ant had no actual malice, was insane or drunk, so far 
 as the same may have appeared at the time of the 
 defamation, and so have caused the wrong to have a less 
 injurious effect; that plaintiff's character was bad, or 
 that general rumors existed that he was guilty ; that the 
 defendant has made ample retraction. While the fact
 
 § 104] DEFAMATION 87 
 
 that others had previously pubhshed the same defamatory 
 matter is not in itself admissible in mitigation, yet the 
 defendant ought not to be held liable for any injury not 
 resulting from his act, and it seems that evidence of 
 previous publication by others will be received, if it can 
 be shown that part of the injury claimed by plaintiff was 
 in fact caused by such other publications and not by de- 
 fendant's act. Whether upon a plea of justification only, 
 any evidence in mitigation may be given has been a 
 disputed question, but the weight of authority is that 
 such evidence may be admissible, whatever the issue. 
 
 Exemplary or punitive damages are based upon the 
 mental attitude of the wrongdoer, and are by way of 
 rebuke or punishment for his malice. They may be 
 given on account of the violent or exaggerated character 
 of the charge as showing deliberate malice. Evidence 
 may be received of previous transactions that indicate 
 malice in the case at bar; of recklessness in uttering the 
 false statement; of the publicity and repetitions of the 
 charge, as showing unusual malice; of a refusal to listen 
 to explanations, or after explanation to make retraction. 
 It is the uniform rule, however, that exemplary damages 
 can not be allowed where the defamation is punished 
 criminally. Hence, where libel is an indictable offense, 
 evidence of the defendant's actual motive, malicious or 
 otherwise, is not properly admissible, except so far as 
 it can be shown to have affected the actual injury. 
 
 It is to be noted that in slanders of the fourth class, 
 that is, those actionable only by reason of special dam- 
 ages, the plaintiff is confined to such actual injury as he 
 alleges and proves, and since exemplary damages are not 
 based upon actual injury, it follows that in cases of 
 slander not actionable per se, no exemplary damages can 
 be recovered.
 
 CHAPTER Xn 
 
 FRAUD AND DECEIT 
 
 Sec 
 
 
 Sec. 
 
 101 
 
 Kinds of fraud. 
 
 119. 
 
 106. 
 
 Frauds in confidential re- 
 
 120. 
 
 
 lations. 
 
 121. 
 
 107. 
 
 Parties having illegal sex- 
 
 122. 
 
 
 ual relations. 
 
 123. 
 
 108. 
 
 Trustees. 
 
 124. 
 
 109. 
 
 Attorneys, physicians and 
 clergymen. 
 
 125. 
 
 110. 
 
 Persons of weak mind. 
 
 
 111. 
 
 Fraud and deception be- 
 tween equals. 
 
 126. 
 
 112. 
 
 Definition. 
 
 127. 
 
 113. 
 
 Fraud by silence. 
 
 
 114. 
 
 Equal opportunities for 
 
 128. 
 
 
 knowledge. 
 
 129. 
 
 115. 
 
 Elements of fraud. 
 
 130. 
 
 116. 
 
 Representations. 
 
 131. 
 
 117. 
 
 Clearness and certainty. 
 
 
 118. 
 
 Matter of law. 
 
 
 Matter of opinion. 
 
 Matters of fact. 
 
 Fraudulent promises. 
 
 Materiality. 
 
 Falsity. 
 
 Wrongdoer's knowledge 
 
 Wrongdoer's intent thar 
 
 the representation be 
 
 acted on. 
 Who entitled to rely on 
 
 representations. 
 Representation must have 
 
 been acted on. 
 Injured party's belief. 
 Damage. 
 The remedies. 
 Personal injuries through 
 
 fraud. 
 
 § 105. Kinds of fraud. — It is every one's right to 
 have others exercise good faith toward him and to 
 refrain from violating the trust and confidence that he 
 may place in them. The social fabric rests upon the 
 maintenance of this right. It is evidently impracticable, 
 however, for the law to enforce perfectly honest and 
 fair dealing under all circumstances. The inquiry must 
 be, how far does the law take cognizance of or under- 
 take to remedy violations? This is the subject of frauds 
 and deceptions. 
 
 Wrongs of this kind may exist where the parties are 
 not upon terms of equality, and the injured person is 
 by reason of some special relation entitled to repose more 
 
 88
 
 § 108] fRAUD AND DECEIT 89 
 
 than usual confidence in the wrongdoer. Or such wrongs 
 may be where the parties do not occupy any special rela- 
 tion toward each other. As to both classes, the wrong 
 may consist in either affirmative conduct, as where one 
 makes a false statement misleading another, or in negative 
 conduct, as where one who ought to speak is silent. 
 
 § 106. Frauds in confidential relations. — Where 
 parties are upon any special terms of relationship under 
 which one is entitled to place peculiar reliance upon the 
 other, the law will closely scrutinize transactions between 
 them, and may hold any violation of confidence to be 
 a legal wrong. Some of these relations will be separately 
 considered. The principles are analogous in all. 
 
 § 107. Parties having illegal sexual relations. — 
 
 Although persons living in illegal sexual relations are 
 both in the wrong, and although no contract will be 
 enforced which has for its consideration such relation, 
 nevertheless the law recognizes that there is under such 
 circumstances an opportunity for one to take undue 
 advantage of the other through misuse of confidence 
 reposed. Business transactions between such persons are 
 open to suspicion, and unless the party benefited shows 
 that no advantage was taken, the law will afford a 
 remedy, either by restoring to the injured party what 
 was lost, or by giving damages. 
 
 § 108. Trustees. — The relation of trustee may be 
 created either by the party himself, or by some individual 
 for his benefit, or by judicial action. Executors and 
 administrators, guardians, assignees, receivers, partners, 
 agents for sale of property, and the like, are all trustees 
 as much as if they were expressly so named. In every 
 case the trustee is selected on account of confidence re-
 
 90 ELEMENTARY LAW [§ 109 
 
 posed in him; and the law requires of the trustee perfect 
 good faith and integrity in the discharge of his obhga- 
 tions. It is an elementary principle that a trustee is 
 permitted to do nothing whereby he personally reaps an 
 advantage to the detriment of his trust. Hence, when- 
 ever he deals with his beneficiary, the transaction will be 
 deemed fraudulent unless he shows that he made full 
 disclosure of all matters that he knew or ought to know, 
 and that the transaction was in fact a fair one. It is 
 necessary that he shall have put the beneficiary on terms 
 of perfect equality with him. Whenever a trustee sells 
 property of the trust, or makes contracts in relation there- 
 to, he is not permitted either directly or indirectly to 
 make a profit to himself. He can not, either himself or 
 through a third person, become the purchaser at his sale, 
 without being held guilty of fraud. The beneficiary has 
 the option to declare the sale void, or to afiirm it, if he 
 deem it to his advantage. 
 
 In cases where the confidential relation is of such a 
 character that its influence can be supposed to continue 
 after the relation has in fact terminated, subsequent deal- 
 ings between the parties may be held to be not on equal 
 terms, and for any misuse of the influence the court may 
 declare the transactions fraudulent. 
 
 § 109. Attorneys, physicians and clergymen. — For 
 
 the discharge of these professional duties it is necessary 
 that there should be a high degree of confidence reposed 
 by those who ask their aid. Without such confidence it 
 would often be impossible to secure an}?- benefit from 
 the services required. The law not only favors, but 
 protects to the fullest degree, all communications made 
 to secure such services. Not only docs the law refuse 
 to compel the professional man to disclose what was told 
 him in confidence, but if the confidence is violated by his
 
 § 110] FRAUD AND DfiCeiT 91 
 
 voluntary disclosure, a remedy in damages may be given 
 for the injury done. 
 
 The confidence reposed begets a strong influence by 
 the professional adviser. If in any business dealings 
 between them any undue advantage is taken, the law will 
 rectify the wrong by compelling the wrongdoer to make 
 restitution or by giving damages against him. 
 
 § 110. Persons of weak mind. — It is not intended 
 here to refer to persons so idiotic and mentally diseased 
 as to be incapable of contracting or giving consent. Such 
 persons are not in any proper sense the victims of fraud. 
 Fraud presupposes some intelligence, enough at least to 
 be misled. The acts of idiots are simply void. 
 
 There are, however, persons whose intellectual power, 
 though feeble, is sufficient for carrying on some of the 
 affairs of business. Their acts are not void. The law 
 recognizes that such persons are not upon terms of 
 equality with their fellows, and therefore justly requires 
 of every person who deals with them a high degree of 
 good faith. Acts that might not be held deceptive when 
 practiced on a person of average intellect will be held 
 fraudulent as to one of defective mental powers. The 
 least undue advantage or unfairness taken by one in his 
 dealings with the weakminded, will be laid hold of by 
 the law as a ground for giving redress. 
 
 Persons intoxicated fall into the same category with 
 those of feeble intellect. Whoever deals with a drunken 
 person is held to take upon himself the burden of showing 
 good faith. The greater the degree of intoxication, the 
 greater is the necessity for exercising a scrupulous good 
 faith. 
 
 And to the extent that their powers may be interfered 
 with by defects, the blind and the deaf stand within the 
 protection of the law.
 
 92 ELEMENTARY I.AW [§111 
 
 It is to be noted that the case of persons of weak 
 powers differs shghtly from the ordinary one of trust 
 in this: In the usual case of trust, the trustee is specially 
 chosen, and extraordinary confidence is actually reposed 
 in him; whereas, in case of persons of weak powers, it 
 often happens that there was really no confidence placed 
 whatever, but in fact the weaker one may have been 
 suspicious, and resisting so far as was within his power. 
 The duty of good faith to the weak is not upon any 
 special person, but upon any and every person who may 
 chance to deal with them. The similarity of principles 
 upon which relief is granted makes it proper to include 
 this topic under the head of frauds in confi.dential rela- 
 tions. 
 
 Under confidential relations, an active duty is imposed 
 upon the one trusted, and it follows that a fraud may- 
 be as easily, and in fact is most often, committed by 
 negative rather than affirmative conduct. The law holds 
 the trustee equally responsible if he fails to speak or act 
 where he should do so, as where he engages in positive 
 misleading practices. The person for whose benefit the 
 trust exists need not usually exercise any care, but may 
 without inquiry rely upon the trustee. 
 
 § 111. Fraud and deception between equals. — As 
 has been stated, the reason why so complete and careful 
 redress is given for frauds done under confidential rela- 
 tions is, that in such relations the victim is off his guard 
 and more or less in the power of the wrongdoer. Where 
 no such confidential relation and hence no misuse of 
 power exists, there is usually less need for the inter- 
 position of the courts. The parties being upon equal 
 terms are able and are expected to use due care in pro- 
 tecting themselves. As a general rule, the law will refuse 
 aid to one whose pretended loss by fraud is attributable
 
 § 113] FRAUD AND DICCF.IT 
 
 93 
 
 to his own failure to exercise ordinary diligence and 
 foresight. The question now is, what are the frauds 
 which the law will redress, and what is the ordinary 
 diligence required of every one? 
 
 §112. Definition. — Fraud or deceit is any trick, 
 collusion, contrivance, false representation or underhand 
 practice used for the injury of another. It need not be 
 by words. Any positive conduct may be the equivalent 
 of a verbal statement and be a deception. And in some 
 cases silence or inaction may be sufficient to accomplish 
 the fraudulent purpose. 
 
 § 113. Fraud by silence. — In transactions between 
 equals, the mere silence or inaction of one will not be 
 regarded as a fraud, even though by speaking or acting 
 he could have saved or prevented the other from error 
 and loss. As for instance, if one knows there is a 
 valuable bed of ore upon another's land, and without dis- 
 closing his knowdedge buys the land, such silence is no 
 fraud; for every one is supposed to be entitled to the 
 gains he may make through superior knowledge, so 
 long as he does not engage in underhand practices or 
 tricks. If, however, the silence occurs in connection with 
 any act or statement that gives it point and meaning it 
 may amount to a fraud ; as, for example, if one stands by 
 and allows his property to be sold as the property of 
 another, or if one is referred to as knowing a statement 
 to be true, and he remains silent in such a way as to 
 create the impression of affirmance. So, if one profess 
 to state all of the facts and intentionally omit material 
 parts, it is a fraud. By universal acceptance there are 
 certain acts and statements that presuppose the existence 
 of certain other facts, for instance, the giving of a check 
 upon a bank, even though nothing be said, amounts to
 
 94 KLEMENTARY LAW [§ 114 
 
 the statement that there are funds in the bank for pay- 
 ing it, and if there are not, there may be a gross fraud. 
 While a seller of goods is not always bound to inquire 
 for what purpose the goods are intended to be used, 
 yet if it is apparent or the seller is informed that the 
 goods are to be used for a specific purpose, the act of 
 selling them will be equivalent to a statement that they 
 are fit for the use intended. In such cases it is the seller's 
 duty to inform the buyer of defects not open to obsei'va- 
 tion of the buyer, and silence may be a fraud. An 
 example of this is tlie sale to a consumer of provisions 
 apparently sound, but known by the dealer to be wholly 
 unfit. The buyer is not negligent for omitting inquiry 
 as to their fitness, and the seller's silence on the point 
 amounts to a fraud. 
 
 § 114. Equal opportunities for knowledge. — Where 
 one party has equal opportunities with the other for know- 
 ing or ascertaining the truth, the general rule is that he 
 must avail himself of his opportunities, or be left remedi- 
 less, if through his want of diligence he is deceived. The 
 decisions as to what will constitute equal opportunities 
 and what degree of diligence will be required are not 
 altogether harmonious. It is well settled, however, that 
 if one party by any device disarms the other's suspicions, 
 and induces him to refrain from making any examination 
 he would otherwise have made, relief will be given for 
 the fraud. If the subject as to which a representation is 
 made is not at hand, or if it be of such a nature that 
 an examination is not practicable, there will be no want 
 of diligence in relying upon the representations made, 
 but if they are false the transaction will be fraudulent. 
 
 § 115. Elements of fraud. — In order to make out 
 a cause of action for fraud or deceit, the following
 
 § 117] FKAUD AND i)i:ci:iT 95 
 
 elements must concur: (1) That the defendant made a 
 false representation of a material fact. (2) That the 
 defendant had knowledge of its falsity. (3) That the 
 defendant intended it to be acted upon by plaintiff. (4) 
 That the plaintiff, believing it true, acted upon it to his 
 damage. 
 
 These elements will be considered in detail. 
 
 § 116. Representations. — A distinction must be 
 borne in mind between a representation and a warranty. 
 A warranty is part of the contract itself, to be enforced 
 in the same way that the contract is enforced. A repre- 
 sentation is not part .of the contract, but is one of the 
 reasons or inducements for making a contract. The 
 breach of warranty is remedied by an action on the 
 contract. A false representation is remedied as a tort. 
 Although upon the same state of facts there may be a 
 warranty, as well as representation, and the party injured 
 may elect which remedy he will pursue, it does not fol- 
 low that in all cases of breach of warranty there has 
 been false representation. It is sometimes of great 
 importance whether the cause of action is upon one or 
 the other. Where the transaction in question is upon 
 writings, the meaning intended by the parties must gen- 
 erally be gathered from the writings, and there will 
 therefore be little difficulty. Where the matter is oral, 
 however, the question is more doubtful, and must be left 
 to a jury to decide, in the light of all the surrounding 
 circumstances. 
 
 § 117. Clearness and certainty. — In order to be a 
 false representation, the words or conduct used must gen- 
 erally be clear and certain and not of vague and indefinite 
 Import. They must carry a sufficiently definite meaning, 
 so that a man of average intelligence would act on them.
 
 96 ELEMENTARY LAW [§ 118 
 
 Indefinite and vague statements ought to put an ordi- 
 narily prudent person on his guard and upon inquiry ; 
 and if put on inquiry he can liave no cause of action, for 
 if he inquired he must have ascertained, and if he did not 
 incjuire his negligence defeats him. 
 
 § 118. Matter of law. — A misrepresentation of a 
 matter of law is usually not in law a fraud, for it is 
 supposed that all men's opportunities for knowledge in 
 this respect are equal. 
 
 If, however, it is clear that the opportunities are not 
 equal, there may be a fraud, as, for example, if the 
 statement be made by an attorney. with intent to deceive, 
 or perhaps if made by any one professing familiarity with 
 the law to one who is clearly ignorant. Persons are 
 not supposed to have equal opportunity to know foreign 
 laws, and a false statement in regard thereto may be a 
 fraud. 
 
 § 119. Matter of opinion. — As a rule, mere expres- 
 sions of opinion, even though false, are not to be regarded 
 as representations of fact, and will not amount to fraud. 
 The question frequently arises upon statements as to 
 value ; they will usually be held to be mere expressions 
 of opinion, for each party has an equal right and ought 
 to form his own opinion. If, however, one has peculiar 
 means of knowledge, as an expert, his false statement 
 of value may be a fraud. And if property is at a distance 
 and a purchaser is induced to refrain from making exam- 
 ination, but to rely on the seller's false statement as to 
 value, it may be a fraud. The decisions are conflicting 
 upon this subject, but it is generally agreed that false 
 statements of any facts that enter into the question of 
 value will be a fraud, as for example, misrepresentation 
 as to cost or what the price was on previous sale.
 
 § 122 J ifRAUD AND DICCEIT 97 
 
 § 120. Matters of fact. — In order to amount to a 
 fraud the false representation must have been of a fact, 
 that is, something existent or nonexistent in the present 
 or past. Representations as to matters in the future 
 are not actionable for fraud, for such things can not be 
 said to have existence. Statements as to the future can 
 be no more than promises, or mere predictions. If they 
 are construed as promises, they must be enforced as con- 
 tracts, not remedied as frauds; and if they are predic- 
 tions they are merely opinions, which the law will not 
 recognize as instruments of fraud. 
 
 § 121. Fraudulent promises. — Although the gen- 
 eral rule is well established that a promise unfulfilled is 
 not a fraud nor the evidence of fraud, yet it must be 
 admitted that in actual business affairs a promise is often 
 used as the principal means of committing a deception. 
 In recognition of this, some of the courts, though not all, 
 have attempted to escape the rigor of the rule. It has 
 in some states been held that, if there is a present 
 fraudulent intent not to keep the promise, there is a 
 fraud; for example, if one should buy goods and promise 
 to pay for them, having the secret intention not to pay 
 for them, this would be a false statement as to a present 
 fact, namely, the intent. The decisions are not uniform, 
 however. Many courts hold that the law can not recog- 
 nize as a fact the present intent as to a future act. 
 
 § 122. Materiality. — It is essential that the mis- 
 representation shall have been material, that is, it must 
 have influenced and been a controlling reason for the 
 transaction. It need not, however, have been the sole or 
 even the principal inducement. Its materiality is made 
 to appear sufficiently, if in the judgment of a reasonable 
 
 7 — Elem. Law.
 
 98 ELEMENTARY LAW [§ 123 
 
 person the false statement was one of the reasons for 
 acting. 
 
 § 123. Falsity. — The representation must have 
 been false, but it need not have been literally false. If 
 such words were used as would carry to an average man 
 the false meaning, they would be effective for the fraud- 
 ulent purpose. Indeed a fraud might be accomplished 
 by the use of words true in a literal sense, but false in 
 the sense that would be commonly g'ven them. 
 
 § 124. Wrongdoer's knowledge. — If one inno- 
 cently and upon reasonable grounds makes a statement, 
 he can not be deemed guilty of a fraud even though the 
 statement turn out to be false. He must have had some 
 knowledge of the falsity. A statement will be regarded 
 as false to defendant's knowledge, (1) if he had actual 
 knowledge, (2) if he recklessly stated something as true 
 when he had no grounds one way or the other, (3) if 
 he stated something to be true of his own knowledge 
 when he had only a belief. In each of these cases the 
 defendant created in the mind of the plaintiff the impres- 
 sion that the defendant actually knew about the fact. 
 There is another class in which the defendant may actual- 
 ly have had no bad motive and yet be deemed guilty of 
 fraud, namely, where he was so specially situated that he 
 was bound to know the truth. 
 
 § 125. Wrongdoer's intent that the representation 
 be acted on. — It is essential, to constitute a fraud 
 in the legal sense, that the representation shall have been 
 made with the intent that it should be relied and acted 
 upon. This intent is to be gathered from the circum- 
 stances of the case. Where the representation is made 
 between the parties themselves in a transaction, it is
 
 § 127] FRAUD AND DKCElT 99 
 
 presumed that it was intended to be acted on, and no 
 further proof is necessary in order to show such inten- 
 tion than that the defendant made the misstatement with 
 knowledge of its falsity. But when the representation 
 is made by a third person, such presumption does not 
 arise, and there must be some proof that the person 
 intended the misstatement to be relied on, or knew or had 
 reason to know it was to be acted on. 
 
 § 126. Who entitled to rely on representations. — 
 
 It would be obvious!}' impracticable to permit persons to 
 rely upon any and every misstatement they may hear or 
 read, and to hold the author responsible for ensuing 
 damage, for business operations and even social inter- 
 course would involve such risk as to be unsafe. The law 
 wisely restricts the right of action for fraud to the per- 
 sons who were intended to be influenced by the misrepre- 
 sentation. If one who was not intended to be influenced 
 nevertheless acts and is injured by a misrepresentation, 
 he is remediless. There are cases, however, where the 
 whole public are intended to be influenced, as where 
 corporations publish false prospectuses. In such cases 
 any individual of the public who relies thereon and is 
 injured has a right of action against the authors of the 
 misrepresentation. 
 
 § 127. Representation must have been acted on. — 
 It is self-evident that if the misrepresentation is not acted 
 upon, any damage that results can not be attributed to it. 
 If it appears that the party complaining did not at all rely 
 on the misstatement, whether because he did not believe 
 it, or because he preferred to examine for himself, there 
 is no right of action. If, however, the misrepresentation 
 formed any material part, even though slight, of the in-
 
 100 E;t,EMENTARY LAW [§ 128 
 
 ducement for entering into the transaction, the whole 
 is tainted with the fraud and remedy will be given. 
 
 § 128. Injured party's belief. — It is essential, in 
 order to make out a case of fraud to show that the 
 injured person believed the misstatement to be true. Of 
 course, if he knew it was false, there is an end to the 
 action. And so, if by the exercise of ordinary diligence 
 he could have known the truth, he can not complain that 
 he was defrauded. If he did not know and was prevented 
 from exercising ordinary diligence by any devices or 
 tricks of the wrongdoer, his belief in the false statement 
 would be justifiable. 
 
 As a general rule, a person is entitled to rely on a 
 statement when it is made to him for the purpose of 
 having him rely on it, and he is not chargeable with 
 negligence if he does not make examination for himself. 
 But there are some obvious precautions that every one 
 ought to take, as for instance, one ought to read an 
 instrument before signing it, and failure to do so would 
 be such negligence as would bar a recovery for fraud 
 unless the person is for any reason unable to read or 
 prevented by a clear trick from reading. And it is held 
 that if the opportunity for verification is immediately at 
 hand, it is one's duty to make examination rather than 
 rely on a statement. 
 
 § 129, Damage. — It is an essential of the cause of 
 action for a fraud that there shall have been some damage 
 done by acting on the misrepresentation. It is not suffi- 
 cient that damage may occur in the future; it must have 
 occurred. 
 
 § 130. The remedies. — The law will redress a 
 fraud, either by way of action, or by way of defense, 
 The injured person may recover damages for his injury.
 
 § 131] FRAUD AND DECEIT 101 
 
 t 
 
 he may recover back what he has been defrauded of, or 
 he may have injunction against the wrongdoer's bringing 
 an action, or against his disposing of the property fraud- 
 ulently obtained. If an action has been brought by the 
 wrongdoer upon the fraudulent transaction, the injured 
 person may plead the fraud as a defense. In many cases 
 of fraud, the law remedies the wrong by way of estoppel, 
 that is to say, it compels the wrongdoer to abide by his 
 false statement, and will not permit him to show it to be 
 false. 
 
 § 131. Personal injuries through fraud. — As has 
 been shown under the head of assault and battery, it is 
 usually a good defense to show that plaintiff consented 
 to the act; but if the consent was obtained by fraud, the 
 defense is overcome. The fraud in such case is the 
 essential thing giving a right of action. If one person 
 knowingly hands another an explosive, and the latter, 
 being ignorant, is without fault injured, the former is 
 guilty of a gross fraud ; the action, however, would be 
 for an assault and battery, or for negligence. And so, 
 where one leaves exposed anything that is dangerous, 
 whether on his own premises or elsewhere, in such a man- 
 ner as to create an appearance of safety, and in conse- 
 quence injury occurs to innocent persons, it is clear that 
 the most important element of wrong is the deception; 
 yet the action would properly be considered as one for 
 negligence or for nuisance. Where fraud produces per- 
 sonal injury, there is generally some other ground than 
 fraud upon which the case may rest. It is conceivable, 
 however, that there might be a case in which a malevolent 
 person could by fraud alone cause direct personal injury, 
 and which would be redressed upon the ground of fraud 
 and deception. The usual field for fraud is that of prop- 
 erty and contracts.
 
 CHAPTER XIII 
 
 
 NUISANCE 
 
 Sec. 
 
 
 Sec. 
 
 132. 
 
 How related to negli- 
 
 142. 
 
 
 gence. 
 
 143. 
 
 133. 
 
 Nuisance defined. 
 
 144. 
 
 134. 
 
 "Coming to a nuisance." 
 
 145. 
 
 135. 
 
 The intent or motive im- 
 
 146. 
 
 
 material. 
 
 147. 
 
 136. 
 
 Care or negligence in nui- 
 
 
 
 sance. 
 
 148. 
 
 137. 
 
 What may be nuisances. 
 
 149. 
 
 138. 
 
 Kinds of nuisance. 
 
 150. 
 
 139. 
 
 Public nuisance. 
 
 151. 
 
 140. 
 
 Private nuisance. 
 
 152. 
 
 141. 
 
 Nuisances both public and 
 private. 
 
 
 Authorized nuisances. 
 Obstruction of highways. 
 What is a highway? 
 Purprestures. 
 What is an obstruction? 
 Duration of the obstruc- 
 tion. 
 Objects near the highway. 
 Authorized obstructions. 
 The special injury. 
 Remedies for nuisance. 
 Evidence of nuisance. 
 
 § 132. How related to negligence. — Nuisance may- 
 be described as some use of one's property or rights 
 that is carried beyond the limits which a just regard for 
 the welfare of others prescribes. 
 
 Negligence may be described as the failure to use 
 ordinary care in the performance of some duty enjoined 
 by law, whereby injury results. 
 
 Although the wrongs of nuisance and of negligence 
 are in their nature essentially different and require a 
 separate consideration, yet they have certain points of 
 similarity and of difference which it will be instructive 
 to bring into comparison. 
 
 They are alike in that they may affect either the per- 
 son or property. They are further alike in that the 
 wrongdoer does not primarily seek to destroy or take 
 away the rights or property of the injured one, but the 
 
 i02
 
 § 133] NUISANCE 103 
 
 injury consists usually in only an impairment of the 
 rights or property. The injury done is indirect, that is 
 to say, the injury done is either not immediately at the 
 hands of the wrongdoer, or not within his purposes, but 
 generally occurs as the secondary effect of some wrong- 
 ful act. It is not essential in either that there shall have 
 been any evil motive; indeed, the legal wrong of nuisance, 
 or of negligence, may exist, although the actual intent 
 was praiseworthy. 
 
 Among the points in which they differ, nuisance gen- 
 erally implies some duration of wrongdoing; neghgence 
 is usually from single acts or omissions. In nuisance the 
 injury done may have been intentional or unintentional; 
 in negligence it is essential that the precise injury shall 
 have been unintended. In nuisance the question is as to 
 the lawfulness of the act itself, in other words whether 
 there is any right to do the act at all; in negligence 
 the right to do the act is not generally in dispute, but the 
 inquiry is as to the manner of doing it. 
 
 The line of demarcation between the principles that 
 control the two classes of wrong is clear, yet the wrongs 
 may coexist under the same state of facts, and it fre- 
 quently happens that one is involved as an essential 
 element of the other. For example, a properly con- 
 structed railroad crossing in a street is not a nuisance, 
 but if, through negligence in keeping it in repair, it 
 becomes an obstruction, it will be a nuisance. 
 
 § 133. Nuisance defined. — The word means "an- 
 noyance." A common definition is, "anything which 
 worketh hurt, inconvenience or damage to another." 
 Whatever is injurious to health, or indecent, or offensive 
 to the senses, or an obstruction to the free use of prop- 
 erty, so as to essentially interfere with the comfortable 
 enjoyment of life or property, is a nuisance. The defini-
 
 104 ELEMENTARY LAW [§133 
 
 tions are unavoidably too comprehensive. Many wrongs 
 that seem to be included within the bounds of the defini- 
 tion of nuisance are clearly within other classes that have 
 been heretofore considered. An assault and battery is 
 injurious to health and offensive to the senses; a trespass 
 interferes w^ith the comfortable enjoyment of property; 
 a libel w^orketh hurt, inconvenience and damage, but these 
 are not nuisances. Only such wrongs falling within the 
 definition as do not fall under other distinct heads are to 
 be treated as nuisances. 
 
 A thing may be a nuisance (1) causing personal dis- 
 comfort, as by interfering with one's q;iiet, or personal 
 freedom, or affecting in an injurious way the senses, 
 nerves or health; (2) causing material injury to prop- 
 erty, as by loss of trade, deterioration of values, complete 
 or partial destruction of property. In determining 
 whether or not a given thing is a nuisance, there will be 
 found to be some difference when viewed as to its effect 
 upon the person or upon property. 
 
 Whether an act causing mere personal discomfort is 
 or is not a nuisance generally depends upon the question 
 whether, under the circumstances, it is reasonable; for, 
 it is obvious that the carrying on of daily business opera- 
 tions necessarily involves some discomfort to neighbors. 
 If one resides in a manufacturing district he must be 
 content to endure more annoyance than would be per- 
 missible in a district used for residence purposes only. 
 The discomforts are supposed to be outweighed by the 
 advantage of having business conducted in such place. 
 To be unlawful, the act must be one causing or threaten- 
 ing some sensible physical annoyance; if only mental 
 disquietude is involved, there will be no nuisance. The 
 annoyance can not, however, be allowed to exceed what 
 is reasonable; whenever it does so it will be a nuisance. 
 WJiether the annoyance does exceed what is reasonable
 
 § 134] NUISANCE 105 
 
 is not to be determined by the standard of the people 
 specially affected. It is not a question of the notions 
 of any particular persons, whether they be overfastidious 
 or overstupid. The standard to be taken is that of 
 average persons of the community. 
 
 When the question is whether a thing is a nuisance 
 by causing injury to property, the test to be generally 
 applied is whether the injury is visible or sensible. If 
 the injury is of the visible character, eve-n tho.ugh slight, 
 the thing will be a nuisance, and it will be no defense to 
 show that the business is being tonducted in as reasonable 
 a manner as possible. It is unlawful for one to use his 
 property so as to injure his neighbors. 
 
 § 134. "Coming to a nuisance." — As has been 
 stated, the locality of a business very largely determines 
 the question as to whether it is a nuisance or not. What 
 would be a nuisance in a thickly populated place may be 
 none at all in a place sparsely settled, as in the outskirts 
 of a town. There may, however, be a change in the sur- 
 roundings. The town by gradual and natural increase 
 may spread so that the locality of the business in question 
 becomes thickly populated. The question arises, what is 
 the effect upon the business? The argument would be 
 that there has been no change in the business, and that 
 the act of strangers in coming to the place ought not to 
 make that a nuisance which was not a nuisance before. 
 Formerly this argument prevailed in the courts, and it 
 was held there was no right of action. Now, however, 
 the law is settled the other way. It is uniformly held 
 that the author of a nuisance is not protected by the fact 
 that he was on the ground first, and that the injured per- 
 son "came to the nuisance." The reason for the rule as 
 now established is that the owner of the vacant land is
 
 106 ELEMENTARY EAW [§ 135 
 
 also entitled to protection, and if his vendees must take 
 subject to the nuisance, the value of his land is impaired. 
 
 § 135. The intent or motive immaterial. — Inas- 
 much as the test for nuisance is whether the thing done 
 is lawful or unlawful, it is generally immaterial what 
 was the motive. If the act be one that it is lawful to 
 do, it can not be deemed a nuisance merely because it 
 was done from bad motives. For example, every man has 
 a right to keep surface water on his own land, and even 
 though his doing so necessarily injures lower lying land 
 that formerly depended on it for irrigation, there can 
 be no action for the injury. The converse also holds 
 good. If the act be one that does in fact create a 
 nuisance, it is actionable even though done with the best 
 motives, and even though it is highly beneficial or neces- 
 sary to the public. 
 
 The motive is, however, considered to some degree 
 where the act in question is onp which merely affects 
 personal comfort, so that a noise that is necessary to a 
 proper business may be held to be no nuisance, when if 
 the same noise were wantonly made for the express pur- 
 pose of annoying it would be a nuisance. And while 
 malice is not an essential of the cause of action for 
 nuisance, it may always be involved upon the question of 
 exemplary damages. 
 
 § 136. Care or negligence in nuisance. — In nui- 
 sance, the question of care or negligence in doing the 
 act is not necessarily involved. If the act be of such a 
 character that it amounts to a nuisance, it is actionable 
 even though the highest degree of care has been exercised. 
 For instance, where a factory emits poisonous gas, it 
 is no answer to show that the business can not be other- 
 wise conducted* and that the highest degree of care is
 
 § 137] NUISANCE 107 
 
 used to prevent the escape of the gas. Where, however, 
 the question is of a nuisance affecting only the physical 
 comfort, it is sometimes of controlling importance 
 whether due care has been exercised. Care is in such 
 cases involved in the same way that intent or motive 
 may be involved. For example, the smoke from a mill 
 may be declared to be a nuisance where it appears that 
 by the exercise of ordinary care it could be rendered 
 almost inoffensive. 
 
 Where any state of affairs is lawful and inoffensive, 
 and becomes offensive only by reason of its not being 
 maintained in proper condition, the question of care or 
 negligence is important. In such cases the unlawfulness 
 of the nuisance would consist in the negligence of its 
 origin, and if there was no negligence there would be 
 no liability for nuisance, for it would be a highly incon- 
 venient rule that would hold a man culpable where in 
 spite of care and diligence his property suddenly becomes 
 injurious. 
 
 § 137. What may be nuisances. — Reasonable noises 
 are not nuisances. In order to become unlawful, they 
 must be unreasonable in their character, or be made at 
 unreasonable hours. The ringing of church bells, if in 
 the daytime, has been held to be not a nuisance, but if 
 in the night-time has been held to be a nuisance. The 
 noises of a drinking-saloon were held to be a nuisance 
 by day or night. The blowing of a trumpet at night or 
 the barking of a dog at night have been held to be 
 nuisances. 
 
 Smoke, dust, smells and noxious gases, causing 
 sensible and physical discomfort, are nuisances. It is 
 not necessary to show that health is being impaired 
 thereby, the discomfort is sufficient to ^x the character 
 of the act as a nuisance. Fumes from burning old
 
 108 ELEMENTARY EAW [§ 138 
 
 clothes, smoke from brick kilns, dead animals left un- 
 buried, cattle-yards and pig-pens, cess-pools, vaults, livery- 
 stables, gas works, pools of stagnant water, excessive heat 
 maintained to the discomfort of neighbors, collecting 
 crowds in the streets by means of exhibitions, may be 
 nuisances. 
 
 Things dangerous may be nuisances, even before any 
 actual injury has occurred, as the pesthouse in a populous 
 district, the keeping of explosives or inflammable things 
 in such a way as to be dangerous, fires negligently kept, 
 blasting rocks, setting spring guns and traps, whether on 
 one's own land or not, provided they are so placed as to 
 menace the safety of other persons. 
 
 Polluting the water of springs or streams, so as to 
 render it unfit for use or offensive to the senses, is a 
 nuisance. The same is true of underground streams and 
 percolating water. 
 
 Interfering with the natural flow of water in regular 
 channels, whether by unduly increasing or diminishing it, 
 may be a nuisance. One may not dam up a stream so 
 as to throw the water back upon his neighbor. As to 
 surface water, not in regular channels, it is generally the 
 law that one may keep it all upon his own land if he 
 wish, but whether he can cause overflows by building 
 embankments on his own land to prevent the surface 
 water coming from his neighbor's land, is a disputed 
 question. In some states it is held to be a nuisance, in 
 others to be lawful. 
 
 Obstructing travel upon highways, whether streets or 
 waterways, is a nuisance. 
 
 § 138. Kinds of nuisances. — Considered with refer- 
 ence to the persons affected by the unlawful act, a 
 nuisance may be either: (1) Public or common. (2) 
 Private. (3) Both public and private. Whether the
 
 § 141] NUISANCE 109 
 
 nuisance be one or the other depends not on the character 
 of the act, but upon the circumstances under which it 
 is done and the effect produced. 
 
 § 139. Public nuisance. — A public or common 
 nuisance is punishable by the state and not by civil suit 
 of individuals. It may be committed (1) upon the pub- 
 lic premises, or (2) upon private premises in such man- 
 ner as to interfere with the public. Its distinctive feature 
 is that it affects the community in general, and that indi- 
 viduals affected do not sustain any peculiar or especial 
 injury. 
 
 An example of nuisance which is public only would 
 be an indecent exhibition in a public park. 
 
 § 140. Private nuisance. — A private nuisance is one 
 that affects certain individuals only, or certain individuals in 
 a peculiar or especial way. A purely private nuisance must 
 generally be committed or maintained upon private premises. 
 It is redressed by civil suit of the person injured, and 
 not by indictment. An example of purely private nuisance 
 would be the injury of a neighbor's shade trees by 
 noxious gases from a factory. 
 
 § 141. Nuisances both public and private. — The 
 unlawful act may be at one and the same time a public 
 and a private nuisance, according as it is complained of 
 by the state or by the individuals injured. The state may 
 punish by indictment, and the individual injured may also 
 recover in a civil suit. Neither remedy is exclusive of 
 the other. As an example of nuisance having this 
 double character, may be given the pollution of a public 
 drinking place ; the public would be prevented from enjoy- 
 ing the water, and there would be a public nuisance; if 
 any individual should inadvertently drink of the polluted
 
 110 ELEMENTARY LAW [§ 142 
 
 water and be thereby made sick, he would have a right 
 of action as for a private nuisance. 
 
 § 142. Authorized nuisances. — The right to main- 
 tain a strictly private nuisance may be acquired by twenty 
 years uninterrupted continuance of the nuisance. No 
 shorter time will be sufficient to give any rights. But, 
 when the full time has elapsed, the right to maintain the 
 nuisance is complete, and it can not then be lost by any 
 discontinuance short of twenty years. If the nuisance be 
 public, no right to maintain it can be acquired by lapse 
 of time, and this is true, even though it be also a private 
 nuisance. 
 
 What would otherwise be nuisances may sometimes 
 be authorized and made lawful by the act of the state. 
 As to nuisances strictly public, no one has the right to 
 complain except the state, and the legislature may sur- 
 render this right b}'^ declaring the act in question to be 
 lawful or by commanding such act to be done. Any act 
 done under authority of an act of the legislature can not 
 be a public nuisance. In case of private nuisances the 
 power of the legislature does not extend so far. The 
 legislature can not make lawful any act the effect of 
 which would be to take away or impair the rights of 
 property without compensation therefor. Subject to this 
 limitation, it may, however, declare what shall or shall 
 not be private nuisances, and the enactments will be valid. 
 
 § 143. Obstruction of highways. — Nuisance by ob- 
 structing and interfering with highways may be either 
 public or private in effect, or may be both. Whether it 
 is punishable criminally as a public nuisance is generally 
 a matter of statutory enactment. In so far as the ques- 
 tion of private nuisance by obstruction of highways is 
 concerned, the well-settled rule is, that whoever, without
 
 § 145] NUISANCE HI 
 
 special authority, materially obstructs a highway or ren- 
 ders its use hazardous is liable to one who sustains a 
 special injury thereby. The rule raises the following 
 questions, to be considered in order: (1) What is a 
 highway? (2) What is obstructing or rendering haz- 
 ardous? (3) What is without special authority? (4) 
 What is special injury? 
 
 § 144. What is a highway. — It is the general name 
 for all kinds of public ways, whether carriage ways, 
 bridle ways, foot ways, or navigable streams. It also in- 
 cludes bridges, turnpikes, railroads, canals and ferries, 
 but the public rights in these cases are complicated with 
 the rights of the persons or corporations controlling the 
 ways, so that many other principles are involved in their 
 obstruction. 
 
 The public highways belong to the public for use 
 from side to side and from end to end. They are entitled 
 not only to free passage along the highway, but over any 
 portion of it not in actual use of some other traveler. 
 
 § 145. Purprestures. — As already intimated, any- 
 thing that prevents or interferes with the free passage 
 by travelers is an obstruction. If the obstruction consist 
 in enclosing a part or all of the public premises and ex- 
 cluding travelers, it is called a purpresture. A purpresture 
 is something more than a mere nuisance in that it in- 
 volves not merely annoyance to the public, but also a 
 taking of public property. Hence although to constitute 
 a mere nuisance it is necessary to show that some one 
 or more have suffered actual injury or annoyance, the 
 wrong of purpresture may be complete without putting 
 the public or any person to any inconvenience whatever. 
 All the other elements of a nuisance must be shown. 
 Following may be given as examples of purpresture :
 
 112 ELEMENTARY LAW [§ 146 
 
 Fencing in a part of the highway, building a house in 
 the street, constructing a stairway to overhang an alley. 
 
 § 146. What is an obstruction. — An obstruction 
 need not involve taking possession of the highway. It 
 is anything beyond a reasonable use of the highway for 
 purpose of passage, tliat interferes with travel. A rail- 
 road track in the street, posts or railings along sidewalks 
 may be nuisances. 
 
 It is not essential that there shall be a physical 
 obstruction of the surface of the highway. Any thing 
 above or below or on the surface that interferes with 
 the free use of the surface may be a nuisance. Cornices 
 overhanging a sidewalk and bay-windows projecting high 
 above the sidewalk have been held to be obstructions. 
 
 § 147. Duration of the obstruction. — The obstruc- 
 tion need not be permanent in character in order to con- 
 stitute a nuisance. It is sufficient if the highway be used 
 for an improper purpose or for an unreasonable time. 
 Placing logs in the street over night, blocking the way by 
 loading and unloading goods if unreasonably prolonged, 
 a temporary ditch dug, or a rope temporarily stretched 
 across a street, using the highway for pasturing cattle, 
 may be nuisances. 
 
 § 148. Objects near the highway. — The obstruction 
 need not be within the bounds of the highway. If the 
 object be so near as to interfere with and endanger 
 travel, it is an obstruction. The ruinous wall of a burned 
 building, standing on private premises, but menacing 
 travelers on the highway, is a nuisance, and the same is 
 true of objects near a highway calculated to frighten 
 horses.
 
 150] NUISANCE 
 
 113 
 
 § 149. Authorized obstructions. — As has been 
 shown, the state by its legislature may legitimate what 
 would otherwise be a nuisance. And so the state may 
 for the pubhc benefit legitimate obstructions in highways. 
 But even when so authorized by the state, if the obstruc- 
 tion amounts to a taking of private property, or impos- 
 ing additional servitudes thereon, the property-owner 
 is entitled to full compensation therefor. If the authority 
 is strictly followed, the obstruction will not be a nuisance. 
 For instance, an unauthorized railroad track would be 
 a nuisance in a street. If the track were built properly 
 and under authority of the statute, it would be no 
 nuisance, but the adjacent owners could recover for the 
 added servitude. If, instead of being built properly, the 
 railroad track should, contrary to authority, be con- 
 structed many feet higher than the grade of the street, 
 it would be a nuisance. If an individual who has the 
 right to complain of an obstruction sanctions it, he can 
 not afterwards object to it, as if a property-owner con- 
 sents to a railroad in a street, he can not afterwards 
 have it abated as a nuisance, and sometimes he is pre- 
 cluded from recovering damages therefor. 
 
 If an authorized obstruction is suffered to become 
 ruinous or out of repair, it may be called a nuisance, but 
 the wrong is primarily one of negligence. 
 
 § 150. The special injury. — In order to give a pri- 
 vate right of action on account of an obstruction, there 
 must be an injury that is special to the individual injured. 
 If the injury is the same as is suffered by every one of 
 the public, there can be no private right of action. In 
 order to be special in the present sense, it is not enough 
 that the injury be greater in degree than that suffered 
 by the public, but it must be different in kind. So, for 
 
 mere delay in a journey, or being compelled to take a 
 8 — Elem. Law.
 
 114 ELEMl^NTARY LAW [§151 
 
 more circuitous route on account of an obstruction, the 
 weight of authority is that no action can be maintained, 
 for any member of the public would suffer the same in- 
 convenience. But if through the delay the traveler sus- 
 tains a peculiar loss, as the loss of a market, deterioration 
 of perishable goods and the like, he may recover. If 
 one's access to his property is cut off, it is a special in- 
 jury. And so are injuries to person or property received 
 from collision with the obstruction. 
 
 § 151. Remedies for nuisance. — Public or common 
 nuisances are redressed by a criminal action, and it is 
 often provided that judgment may be given to abate the 
 nuisance. The remedies for private nuisance are three : 
 
 (1) Abatement by the act of the person injured. If 
 he avails himself of this summary remedy he takes the 
 risk of its being a nuisance, and will be liable for his 
 mistake if it is not, and he is bound to act moderately 
 and can not commit a breach of the peace. A private 
 person is not justified in abating a public nuisance, unless 
 it is also a private nuisance as to him. 
 
 (2) Damages. The person injured may recover his 
 actual damages from the wrongdoer, and if the nuisance 
 be malicious or wanton he may also recover exemplary 
 damages. The remedy by action for damages is not 
 barred by the person having abated the nuisance by his 
 own act. Both remedies may be pursued. 
 
 (3) Injunction. It often happens that a judgment in 
 damages will be an inadequate remedy, and in such cases 
 a court of equity will grant an injunction against the 
 maintenance of the nuisance. This remedy will be given, 
 however, only where the injury is of a serious and 
 permanent character, and will usually be withheld where 
 the nuisance is a business lawfully conducted, and the 
 complainant will be left to his action for damages.
 
 § 152] nuisance: . 115 
 
 § 152. Evidence ot nuisance. — Ordinarily the bur- 
 den is upon the plaintiff to show the existence of the 
 nuisance and also what the injurious effect is. Some 
 things, however, are so uniformly and under all circum- 
 stances offensive that the courts take notice without evi- 
 dence that they are nuisances. These are called nuisances 
 per se. Formerly, many things were regarded as 
 nuisances per se, as things prejudicial to public morals, 
 disreputable houses, saloons, things dangerous to life, 
 powder magazines, nitroglycerine works, and all material 
 obstructions in highways. The tendency of the courts 
 now is to restrict rather than extend the limits of the 
 phrase nuisance per se. And in many states some 
 things that were formerly nuisances per se are not now 
 so considered. But wherever the restriction has taken 
 place, such nuisances are now regarded as prima facie 
 nuisances, that is, instead of requiring the plaintiff to 
 show that they are injurious, the courts presume them 
 to be and require the defendant to bear the burden of 
 showing that they are not injurious.
 
 CHAPTER XIV 
 
 NEGLIGENCE 
 
 Sec. 
 
 
 Sec. 
 
 153. 
 
 Actionable negligence. 
 
 171. 
 
 154. 
 
 Contract or tort. 
 
 
 155. 
 
 Elements of actionable 
 
 172. 
 
 
 negligence. 
 
 173. 
 
 156. 
 
 Definition of negligence. 
 
 174. 
 
 157. 
 
 The inadvertence. 
 
 175. 
 
 158. 
 
 Inevitable accident. 
 
 
 159. 
 
 Ordinary care under the 
 circumstances. 
 
 176. 
 
 160. 
 
 No degrees in negligence. 
 
 177. 
 
 161. 
 
 Acts or omissions. 
 
 
 162. 
 
 Legally responsible per- 
 
 
 
 son. 
 
 178. 
 
 163. 
 
 Intoxication. 
 
 
 164. 
 
 Physical infirmity. 
 
 179. 
 
 165. 
 
 The person to w^hom the 
 
 180. 
 
 
 duty is owing. 
 
 181. 
 
 166. 
 
 The duty. 
 
 
 167. 
 
 The duty implied by law. 
 
 182. 
 
 168. 
 
 The damage. 
 
 
 169. 
 
 Cause and efifect. 
 
 183. 
 
 170. 
 
 The legal connection. 
 
 
 Definition of proximate 
 cause. 
 
 Plaintiff's own conduct. 
 
 Plaintiff's unlawful act. 
 
 Contributory negligence. 
 
 Tests of contributory neg- 
 ligence. 
 
 Plaintiff's knowledge of 
 danger. 
 
 Danger incurred to save 
 life or in discharge of 
 duty. 
 
 Persons of defective pow- 
 ers. 
 
 Misleading conduct. 
 
 Imputable negligence. 
 
 Passenger and carrier — 
 Imputed negligence. 
 
 Children — Imputed negli- 
 gence. 
 
 Presumptions as to negli- 
 
 § 153. Actionable negligence. — The word negli- 
 gence as commonly used covers all cases of omission to 
 do that which ought to be done, but in the legal sense 
 the meaning must be narrowed. The law does not give 
 a remedy for every case of omission. It is only as to 
 such as the law redresses by way of action or defense 
 that the term negligence should be applied. 
 
 § 154. Contract or tort. — Negligence may exist, 
 ( 1 ) as a pure tort, that is, a wrong not arising out of 
 
 116
 
 § 157] NEGLIGENCE 117 
 
 contract; (2) as a ton connected with a contract, but 
 which may be treated as a wrong independent of contract; 
 and (3) as a mere unintended breach of a contract in- 
 volving no tort. Cases of the latter class, so far as legal 
 redress is concerned, will amount to the same as any 
 other breach of contract, and will therefore be considered 
 in the chapter on contracts. In the second class the 
 person injured usually has the right to choose whether 
 he will treat the wrong as a mere breach of contract or 
 as a tort, and if he' chooses the former, the principles of 
 contract control, if the latter the principles of negligence. 
 Under the head of negligence, therefore, will be here 
 considered only wrongs of the first class, and such wrongs 
 in the second class as are treated as torts. 
 
 § 155. Elements of actionable negligence. — In or- 
 der to constitute negligence there must be: (1) A legal 
 duty to use care. (2) A breach of that duty. (3) 
 Absence of distinct intention to produce the precise 
 damage. 
 
 To make it actionable there must be also: (4) Dam- 
 age to the plaintiff. (5) The damage must be the 
 proximate result. 
 
 § 156. Definition of negligence. — Actionable negli- 
 igence is the inadvertent failure of a legally responsible 
 person to use ordinary care under the circumstances in 
 observing or performing a noncontractual duty implied 
 by law, which failure is the proximate cause of injury 
 to a person to whom the duty is due. The elements of 
 the definition must be considered in detail. 
 
 § 157. The inadvertence. — A conscious failure to 
 use ordinary care is a wilful act, from which the law 
 presumes an intent to injure. The wilful doing of a
 
 118 ELEMENTARY LAW [§ 158 
 
 wrongful act implies malice. When such a wrong occurs, 
 the guilty person is liable for all the damages that result, 
 even for what would be deemed too remote if the act 
 had not been wilful. Such a wrong is not one of negli- 
 gence. The phrase, "wilful negligence," though it has 
 been much used, is by the best authorities regarded to be 
 a contradiction in terms. It is true, however, that many 
 wrongs are very close upon the line dividing wilfulness 
 and negligence, and whenever there has been wilfulness 
 the plaintiff has the option to treat it as negligence. He 
 may understate his case and it would not be for the 
 defendant to escape by showing his act to have been 
 malicious. The uniform rule is that in an action for 
 negligence there can be no malicious intent, or wilfulness 
 involved. 
 
 § 158. Inevitable accident. — Inadvertence does not, 
 however, mean that the injury could not have been fore- 
 seen. It is not equivalent to inevitable accident. The 
 latter occurs when the cause of the injury is so unusual 
 that human foresight could not have foreseen nor 
 guarded against it. To be guilty of negligence, the per- 
 son must have been in some way in fault, otherwise the 
 accident is, as to him, inevitable. For instance, unknow- 
 ingly carrying an explosive and handling it on the theory 
 that it is innocent would not be negligence in the carrier. 
 But if inevitable accident combine with any negligence 
 in the person charged he will be liable. 
 
 § 159. Ordinary care under the circumstances. — 
 
 There can be no negligence unless there has been an 
 absence of that degree of care which a person of ordinary 
 prudence is presumed to use under the particular circum- 
 stances to avoid injury. Such care must be in proportion 
 to the danger to be avoided and the consequences involved
 
 § 161] negligence; 119 
 
 in its neglect. What is and what is not the requisite care 
 must be determined from all the facts in each case, and 
 from the nature of the duty owing. The same facts may 
 at the same time amount to ordinary care as to one 
 person and not as to another. For instance, if a land- 
 owner has an unguarded pit on his land, and two persons 
 fall into it, one of whom is a trespasser and the other 
 an invited guest, as to the former there would be no neg- 
 ligence, while as to the latter there would be. 
 
 § 160. No degrees in negligence. — The test is 
 always whether ordinary care under the circumstances 
 has been exercised. The classification into gross, ordinary 
 and slight negligence or care is confusing, and is of no 
 substantial benefit to the inquiry in any special case. It 
 is practically impossible to draw a line between the 
 classes and the classification, though formerly made by 
 the courts, is now almost universally abandoned. It is 
 true that the duty owing may be greater in one case 
 than another, and the same act may be sufficient to dis- 
 charge the duty in one case which would be insufficient 
 in another. Hence, the inquiry must always first be as 
 to what is the duty owing. That settled, the only ques- 
 tion is, was ordinary care exercised in the performance 
 of that duty? 
 
 § 161. Acts or omissions. — Negligence may consist 
 in either an act or an omission to act. In other words, 
 ordinary care under the circumstances may require one 
 to do an act, or to refrain from doing an act. The ques- 
 tion is, what is the duty, positive or negative, and which- 
 ever it is, has the duty been violated? In a wider sense 
 every negligence is an omission, that is, a failure to dis- 
 charge a duty owing.
 
 120 ELEMENTARY LAW [§ 162 
 
 § 162. Legally responsible person. — If a person is 
 wholly incapable of exercising care in its legal sense, he 
 can not be held guilty of negligence, and upon principle 
 ought never to be held liable in damages for his act. 
 There is an apparent exception in case of infants and 
 lunatics, who, according to the statement of some writers, 
 are liable for all their torts, including negligence. In 
 most of the decided cases the infant or insane had capac- 
 ity for some degree of care, and should have been held 
 liable for failing to exercise such prudence as was pos- 
 sessed. In the remaining cases, where the Infant or in- 
 sane was wholly incapacitated, the recovery of damages 
 can be sustained, not on the ground of negligence in the 
 afflicted one, but in his parents or guardians. The true 
 rule is believed to be that a person incapable of exercis- 
 ing care is not liable for a failure to do so, but if there 
 is any capacity at all, he must exercise such care as he 
 is capable of. 
 
 Consistent with the rule are the cases of unconscious 
 agents, for example, persons who without fault do not 
 and can not know the danger, and act with only such 
 care as their knowledge dictates. Persons under duress 
 are not free to exercise any care, hence are not guilty 
 of negligence, but this must be confined to cases where 
 free will is wholly taken away. Persons acting under 
 sudden alarm from any cause that robs them of posses- 
 sion of their senses are not legally responsible. 
 
 § 163. Intoxication. — Voluntary intoxication does 
 not relieve one from exercising all the care he should 
 have exercised if sober. His negligence begins with his 
 becoming intoxicated, and he is responsible for the con- 
 sequences. Instead of being an excuse, intoxication has 
 been held to be evidence tending to prove negligence.
 
 § 166] NEGLIGENCE 121 
 
 § 164. Physical infirmity. — Adults of sound mind 
 are, so far as negligence is concerned, presumed to be 
 equally capable of exercising ordinary care. A man of 
 dull mind is charged with the same kind and degree of 
 care as is a man of brilliant intellect. Physical infirmities, 
 however, must be taken into consideration. No one is 
 bound for a failure to exercise a sense that he has not. 
 But he is bound to make up for his defect as best he 
 can by his other senses. While it can not be stated as 
 a rule that less care is required of a woman than of a 
 man, it very often happens, especially in cases involving 
 physical or nervous power, that sex is of importance in 
 determining what is ordinary care under the circum- 
 stances. 
 
 § 165. The person to whom the duty is owing. — In 
 order to constitute actionable negligence there must have 
 been a duty owing to the party complaining. The fact 
 that there has been a violation of a duty owing to one 
 person does not give another person a right of action 
 therefor, even though the latter receive injury. For 
 instance, a landowner owes the duty to his invited guests 
 to guard them against the danger of a pit on his land, 
 but he owes no such duty to a trespasser, and will not 
 be liable if the latter falls into the pit. 
 
 § 166. The duty. — Of course, if the act in question 
 does not violate any duty, there can be no action. For 
 example, a traveler on a highway, for his own conveni- 
 ence, makes a temporary bridge over a ditch ; he owes 
 no duty to any one to build the bridge in any particular 
 way, or to build it at all. Hence he is not liable to 
 another traveler who afterwards tries to cross and is 
 injured.
 
 122 ELEMENTARY LAW [§ 167 
 
 § 167. The duty implied by law. — In order to be 
 actionable as negligence, the duty that is violated must 
 be one implied by law, independent of contract. Though 
 there may be a contract involved, yet the wrong done 
 must be so far separable from the contract as to give an 
 independent right of action. For example, a man makes 
 a contract v^ath a railroad company to carry him and his 
 servant. There is no contract with the servant. But 
 there is the duty implied by law from the relation of 
 passenger and carrier. For any injury the servant may 
 recover, because this duty implied by law has been 
 violated. And the master, if injured, may recover dam- 
 ages on the same ground. Though there was a contract 
 with the master, there was also the duty implied by law 
 from the relation of passenger and carrier. Hence the 
 master could recover for the negligence as a tort, or he 
 could recover for the breach of contract. 
 
 § 168. The damage. — Unless some substantial in- 
 jury w^as done there can be no action for negligence. 
 Damage is an essential element; and it is obvious that 
 the damage must have been to the plaintiff specially. If 
 from any careless act the plaintiff is injured only in the 
 same kind and degree as the whole public there will be 
 no cause of action. 
 
 § 169. Cause and effect. — The connection of cause 
 and effect between the breach of duty and the injury 
 must be established, otherwise the negligence is not 
 actionable. It must be shown that but for the breach of 
 duty the injury would not have happened. But while this 
 is necessary to be shown, it is not enough. The plaintiff 
 must go further and show that the breach of duty was 
 an efficient cause. For example, if a passenger carrier is 
 guilty of delay so that he arrives at a place on the road
 
 § 172] NEGUGENCE 123 
 
 where a sudden storm injures the passenger, it might be 
 evident that the injury would not have happened but for 
 the neghgent delay; and yet it is also clear that such an 
 injury might equally well happen where the carrier is 
 unusually diligent. The storm and not the carrier's delay 
 is the efficient cause of the injury. It is a uniform rule, 
 however, that if the defendant's act was an efficient cause, 
 he is not relieved by the concurrence of other causes, 
 whether they be called the negligence of others, inevitable 
 accident or the act of God. 
 
 § 170. The legal connection. — Difficulty lies not 
 only in tracing a casual connection, but also in determin- 
 ing whether the connection is sufficiently close to be 
 cognizable by the law. Theoretically there is no end to 
 the effect of an act, and no cause back of which another 
 cause may not be found. The law, however, is practical 
 and draws lines beyond which the search for cause or 
 effect shall not be prosecuted. It requires that the act 
 shall be shown to be the proximate, not the remote cause 
 of the injury. 
 
 § 171. Definition of proximate cause. — Proximate 
 cause is that which in a natural and continuous sequence, 
 unbroken by any new cause, produces the event and with- 
 out which the event would not have occurred. 
 
 A remote cause is one which has so far expended it- 
 self that its influence in producing the injury is too 
 minute for the law's notice; or a cause which some inde- 
 pendent force merely took advantage of to accomplish 
 something not the probable or natural effect thereof. 
 
 § 172. Plaintiff's own conduct. — In the search for 
 the causes of an injury, it usually happens that some 
 conduct of the person injured must be considered as an
 
 124 ELEMENTARY LAW [§173 
 
 agency. The question arises, how far does this affect 
 the liabihty of others? 
 
 It is obvious there is but one way in which plaintiff's 
 conduct can have any effect in reheving other causes of 
 injury, and that is by being itself a cause. In determin- 
 ing whether it is or is not a cause, the plaintiff's conduct 
 is to be considered and weighed as a fact, in the same 
 way with all the other facts in the case. And the same 
 rules governing casual connection apply. If no relation 
 of cause and effect can be shown between plaintiff's con- 
 duct and the injury, the right of action against others is 
 unaffected, it matters not what may be plaintiff's fault or 
 innocence in such conduct. 
 
 If, on the other hand, plaintiff's conduct, whether 
 wrongful or not, is shown to be an efficient and super- 
 seding cause, it will be deemed the sole cause. Between 
 these two are the cases in which plaintiff's conduct is an 
 efficient, but not a superseding cause, and these embrace 
 the subject of plaintiff's contributory fault. It should be 
 noted at the outset that no question can arise as to plain- 
 tiff's fault, except upon the assumption that there has 
 been fault in tlie defendant; for if the defendant is inno- 
 cent, the case is at an end. 
 
 It is a general rule, founded on the maxim, "no man 
 shall take advantage of his own wrong," that if one is 
 injured by the negligence of another, he can not recover 
 damages unless he is himself free from fault proximately 
 contributing to the injury. This fault in plaintiff may 
 consist (1) in an act unlawful in itself, (2) in negli- 
 gence only. 
 
 § 173, Plaintiff's unlawful act. — If an unlawful act 
 of the plaintiff be an efficient proximate cause of the 
 injury to him, he can not recover against another person 
 whose negligent act was also an efficient cause. For
 
 § 175J NHGLIGKNCIi 125 
 
 example, if two thieves break into a house with drawn 
 pistols, and one by negligence shoot the other, no action 
 could be maintained. It is essential, however, that the 
 plaintiff's unlawful act be proximate in causation; for if 
 the unlawful act amounts only to a condition or remote 
 cause, it will not bar his action. For instance, though 
 traveling on Sunday be made unlawful by statute, it 
 would not bar an action against one who should negli- 
 gently frighten plaintiff's horse on Sunday. For it is 
 not a natural sequence of Sunday travel that such injury 
 should happen. 
 
 § 174. Contributory negligence. — The common-law 
 rule was that there could be no recovery for negligence 
 of another if the injured person by his negligence prox- 
 imately contributed to the injury. This rule has been 
 adopted as the law in the federal courts and in the courts 
 of nearly all of the states. Wherever the common-law 
 rule prevails any negligence of the plaintiff that prox- 
 imately contributes as a cause of the injury will defeat a 
 recovery. In some states plaintiff's negligence is for the 
 defense to prove, in others the plaintiff' must show its 
 absence. 
 
 § 175. Tests of contributory negligence. — In as- 
 certaining whether negligence exists, the plaintiff's con- 
 duct must be viewed in the light of all other facts in the 
 case, and in general is subject to the same tests as is the 
 defendant's conduct. There must have been a failure by 
 plaintiff to use ordinary care, or the accident is, so far as 
 his responsibility goes, inevitable. There must have been 
 a want of such ordinary care as was required under 
 the particular circumstances. The kind and degree of 
 care depends on the facts in each case. The plaintiff's 
 negligence may have been an act or omission. Subject
 
 126 ELEMKNTARY LAW [§ 170 
 
 to the exceptions made under the doctrine of imputable 
 neghgence, which will be hereafter considered, the plain- 
 tiff must have been legally responsible for his conduct. 
 Voluntary intoxication does not relieve the plaintiff from 
 exercising all the care he should have exercised if sober 
 Physical infirmities are taken into account, and while 
 plaintiff is not expected to use powers that he does not 
 possess, he is bound so far as possible to make up for 
 defective powers by the use of those he has, and it is 
 essential that the plaintiff's conduct be a proximate cause 
 of the injury. 
 
 § 176. Plaintiff's knowledge of danger. — The fact 
 that plaintiff knew there was danger is not conclusive 
 that he was guilty of contributory negligence. A man 
 may be fully conscious of danger, and yet be in the 
 exercise of ordinary care under the circumstances. Some 
 risks must always be taken; the question is, what risks 
 will a prudent man take? 
 
 § 177. Danger incurred to save life or in discharge 
 of duty. — One who is saving the life of another in peril 
 from the defendant's negligence is not guilty of con- 
 tributory negligence, unless the attempt to save is so 
 rash as to be practically certain to result in injury, or, 
 as is sometimes held, unless the person to be saved was 
 himself in the wrong. A son who tried to save the life 
 of his father, who was negligently on a railroad track, 
 was not allowed to recover against the railroad company 
 for its negligence. 
 
 One charged with the duty of caring for others is not 
 guilty of contributory negligence even though he dis- 
 charge the duty in the face of certain danger, provided, 
 of course, that he could not have done his duty in any 
 safer way. But a person so injured must himself have
 
 § 180J NEGUGENCE 127 
 
 been free from any fault in creating the clanger. So, 
 an engineer who stays at his post to save passengers from 
 a colHsion is not to be deemed guilty of contributory 
 negligence, unless, for instance, he violated orders in 
 starting and thereby brought on the collision. 
 
 § 178. Persons of defective powers. — As has been 
 shown, persons of defective powers are not guilty of 
 negligence for failing to exercise more care than they 
 are capable of exercising. This is equally true where the 
 question is upon contributory negligence of such persons. 
 It naturally follows that a correspondingly higher degree 
 of care is required from all who deal with such persons. 
 An act that would be ordinarily careful, if done toward 
 a grown person, might be negligent if done toward a 
 child. It is always presupposed, however, that the 
 defective condition of the person was or ought to have 
 been known. Thus an engineer would not be negligent 
 for expecting a man to step off the track when he sounded 
 the whistle, without checking speed, whereas, if he had 
 notice that the man was deaf, it would be negligence. 
 
 § 179. Misleading conduct. — A plaintiff is not 
 chargeable with contributory negligence, whose erroneous 
 act was caused or induced by the misleading conduct of 
 the defendant. If he has a right to rely and does rely 
 upon defendant's verbal directions or conduct, assuring 
 him of safety, he is blameless, provided the danger is 
 not obvious ; and where bv the defendant's nesrlieence 
 a sudden danger confronts the plaintiff, he is not in fault 
 if in the haste and alarm he does not choose the safest 
 course, or even if he chooses the only dangerous course. 
 
 § 180. Imputable negligence. — The principle on 
 which tlie doctrine of imputable negligence rests is that
 
 128 ELEMENTARY LAW [§ 18l 
 
 the innocent person and the guilty person are identified 
 as in a joint enterprise, by agency or by having the right 
 to control. The case of saver and saved has been alluded 
 to, the negligence of the one saved being imputed to the 
 saver. The negligence of a servant is imputed to the 
 master, for he has the right to control. Partners, whose 
 goods are injured by negligence of another, can not 
 recover if the negligence of one partner contributed, for 
 his negligence is imputable to all. The cases of carrier 
 and passenger, and of children, require a few words 
 more. 
 
 § 181. Passenger and carrier — Imputed negligence. 
 
 — The old English rule, established by the case of Thoro- 
 good V. Bryan, was that in an action by a passenger 
 against a third person for a negligent injury, the con- 
 tributory negligence of the carrier will be imputed to the 
 passenger. It was assumed that a carrier is a passenger's 
 servant in all cases. The rule has been overthrown in 
 England, and is not in force in the United States courts, 
 nor in most of the states. The negligence will not be 
 imputed to the passenger unless the driver was acting under 
 the direct control and instruction of the passenger. This 
 is the modern view. 
 
 § 182. Children — Imputed negligence. — The ques- 
 tion is only concerning children too young to be capable 
 of exercising any care whatever; for if they have any 
 capacity at all they will be negligent for failing to exer- 
 cise it, and at the same time will be responsible only for 
 their own negligence. Whether the negligence of parents 
 or custodians shall be imputed to children who are them- 
 selves incapable of exercising care and hence incapable 
 of negligence, is a question upon which the authorities
 
 § 183] negligence; 129 
 
 are divided. The better reason is against imputing negli- 
 gence in such case. 
 
 § 183. Presumptions as to negligence. — As a rule 
 negligertce is not presumed, but must be proved. The 
 mere fact that some one has been injured does not 
 usually make it probable that any particular person has 
 been negligent. But the circumstances under which an 
 injury occurred may be such as to create a presumption 
 of negligence, and throw the burden upon a certain person 
 to prove himself without fault. If, judged by common 
 human experience, a fact could not exist except by some 
 negligence, the court will, in the absence of other evi- 
 dence, declare that there was negligence. For instance, 
 if a passenger is thrown down by the jerk of a street 
 car, the presumption is that the jerk was by negligence 
 of the street car company; if a boiler on a vessel ex- 
 plodes, it is presumed to have exploded by negligence of 
 those in control. The presumption can always be over- 
 come by the defendant showing that in fact he exercised 
 ordinary care under the circumstances. 
 
 Whether the presumption shall be made depends some- 
 what upon the nature of the duty owing and the degree 
 of care required in its discharge. Where there is an 
 obligation for especial care, the presumption of negligence 
 will be made, when it would not under ordinary cir- 
 cumstances. For example, if a railroad train runs off the 
 track and injures a passenger and a bystander, as to the 
 passenger the presumption of negligence in the railroad 
 company would arise, but not as to the bystander. 
 
 9 — Elem. Law.
 
 CHAPTER XV 
 WRONGS TO INCORPOREAL PROPERTY 
 
 Sec. 
 
 
 Sec. 
 
 
 
 184. 
 
 Incorporeal heredita- 
 
 188. 
 
 Copyrights. 
 
 
 
 ments. 
 
 189. 
 
 Literary property. 
 
 
 18.S. 
 
 Other incorporeal rights. 
 
 190. 
 
 Private letters. 
 
 
 186. 
 
 Statutory provisions. 
 
 191. 
 
 Trade-marks and 
 
 trade 
 
 187. 
 
 Patents. 
 
 
 names. 
 
 
 § 184. Incorporeal hereditaments. — Incorporeal 
 hereditaments are inheritable, but intangible rights in cor- 
 poreal or tangible property, such as rights of way across 
 the land of another, easements and the like. These 
 rights partake of the nature of the things out of which 
 they issue, but. since the rights themselves can not be 
 seen or handled, it is evident that they are incapable of 
 direct injury. Whatever injury is done must be con- 
 sequential. Hence the remedies for direct wrongs against 
 corporeal property are not applicable to incorporeal 
 hereditaments. If one has a right of way across another's 
 land, and it is interfered with so that he is deprived of 
 its use, his remedy is not by ejectment, but by an action 
 for the consequential damages or by an injunction. But 
 where the consequence of a wrong to an incorporeal right 
 is also an injury to corporeal property, the remedies as 
 for a direct wrong may be had. For instance, if a land- 
 owner has an easement for lateral support, and his neigh- 
 bor wilfully and maliciously takes away the support and 
 causes the land to fall, the owner may treat it as a 
 direct wrong done by force to his land. 
 
 § 185. Other incorporeal rights. — There is an im- 
 
 130
 
 § 187] WRONGS TO INCORPOREAL PROPERTY 131 
 
 portant class of incorporeal rights which do not issue out 
 of corporeal property in the sense that incorporeal heredi- 
 taments do: This class embraces the subjects of copy- 
 rights, patents and trademarks. Public policy and the 
 sense of justice dictate that one who creates anything 
 should be permitted to enjoy the fruits of his labors. It 
 is evident that in case of copyrights, patents and trade- 
 marks, the substantial benefit to be derived by the 
 creator of the thing in question lies in his having the 
 exclusive right to reproduce or use it. ' 
 
 § 186. Statutory provisions. — The constitution of 
 the United States gives power to congress to secure to 
 authors and inventors the benefit from their creations, 
 for a limited time; and congress has passed acts for that 
 purpose. Just what the provisions are as to the steps 
 to be taken, it is not now material to inquire. Whenever 
 the formalities' prescribed are observed the writer or 
 inventor has a monopoly for the period provided, and 
 may have his remedy against one who infringes his right. 
 He may procure an injunction, recover damages he has 
 suffered, and recover profits made by others. 
 
 § 187. Patents. — Without entering into the details 
 of patent law, a few general principles may be stated. A 
 patent is given for an invention, namely something created 
 by man. Natural processes and principles can not be 
 patented. The thing must be new and useful. A new 
 method of combining things to produce results may be 
 patented. 
 
 Infringement of patents may consist in making, using 
 or selling the thing that is substantially covered by the 
 patent. The person infringing may be held liable, 
 whether he knew or did not know the article was patented.
 
 132 ELEMENTARY LAW [§ 188 
 
 An exception is made in favor of persons making or 
 using the article for purposes of experiment only. 
 
 § 188. Copyrights. — The copyright laws apply to 
 printing of any kind, pictures, music and statuary, and 
 confer upon the author the exclusive right to make, use 
 or sell copies or the originals. The exclusive right 
 extends to the whole as well as every substantial part 
 of the thing copyrighted, so that, if there is a copy or 
 imitation of any substantial part, it will be an infringe- 
 ment. As to what is a substantial part, the facts in each 
 case must determine. The size of the part taken is not 
 a decisive test, for the true value may be in the small 
 part taken. For purposes of criticism, parts may be 
 quoted, but if the review is a pretense for publishing a 
 substantial copy, it is an infringement. 
 
 Whoever infringes the copyright of another is liable, 
 whether it is done innocently or not. The intent is in 
 general immaterial. 
 
 § 189. Literary property. — The monopoly granted 
 under the copyright statute is enjoyed by the author after 
 publication. Before publication, however, an author has 
 legal rights in the product of his intellect, and these rights 
 were recognized before the copyright statutes. 
 
 At common law, so long as an author did not publish 
 his work to the world or abandon it to the public, he 
 retained the right as property to make such use of it as 
 he saw fit. He might, witliout losing his right, permit 
 others to make a limited use of it. Whoever without the 
 author's consent used his work in whole or part was 
 liable to the author in damages and could be enjoined. 
 
 § 190. Private letters. — Where letters have a lit- 
 erary value the writer has the sole right to publish them,
 
 § 191] WRONGS TO INCORPOREAL PROPERTY 133 
 
 even though the legal title to the paper is in the recipient. 
 If it is apparent that they were intended for publication, 
 the recipient may also publish them. Any attempt by 
 others to publish them may be restrained by injunction, 
 or damages may be recovered for the publication. So far 
 as a letter has value for historic purposes the recipient 
 may use it. And all papers of every kind may be used 
 by any one as evidence in any suit, no matter what may 
 be their value. 
 
 § 191. Trade-marks and trade-names. — A trade- 
 mark is a name, symbol or device used by a person to 
 designate that certain goods or property are made by or 
 used by him only, or that a particular business is con- 
 ducted by him. The essential quality of a trade-mark is 
 that it is arbitrary in form. If the mark is descriptive 
 of any quality of the goods it is not valid as a trade- 
 mark. It is intended as a simple and convenient guide 
 to customers. Whoever imitates the trade-mark and so 
 palms off goods under false colors, commits a fraud upon 
 the purchaser, and at the same time causes damages to 
 the owner of the trade-mark, both by the profits he has 
 lost and it may be by the injury to the reputation of his 
 goods. This the law recognizes as a substantial damage, 
 and the trade-mark is regarded as incorporeal property. 
 The law of trade-marks is of comparatively recent origin, 
 although the principles upon which it rests have been 
 long settled as a part of the common law. 
 
 The remedy for infringement of trade-marks is 
 practically the same as for infringement of patents, 
 namely, damages for loss of profits, injunction and re- 
 covery of the profits made by the infringer. 
 
 In the United States recent statutes have been passed 
 authorizing the registry of trade-marks in some cases, 
 and giving them greater value as evidence when registered
 
 134 ELEMENTARY LAW [§ 191 
 
 than when not. The statutes are generally only declara- 
 tory of the common law, and all the remedies that for- 
 merly existed are preserved. 
 
 Though not a trade-mark technically, a trade-name or 
 sign will receive protection from the courts if it is not 
 merely descriptive and contains no deceptive words or 
 meaning, and a rival may be enjoined from using such 
 name or sign so as to cause injury to the owner. By 
 means of such trade-names what is called the good will 
 of a business is preserved and becomes a valuable prop- 
 erty right.
 
 CHAPTER XVI 
 
 WRONGS TO PERSONAL PROPERTY 
 
 Sec. 
 
 
 Sec. 
 
 
 192. 
 
 Kinds of injuries. 
 
 198. 
 
 Demand for possession. 
 
 193. 
 
 Trespass by force. 
 
 199. 
 
 Conversion by tenant in 
 
 194. 
 
 Possession. 
 
 
 common. 
 
 195. 
 
 The force. 
 
 200. 
 
 Legal process. 
 
 196. 
 
 Conversion. 
 
 201. 
 
 Remedies. 
 
 197. 
 
 Conversion by persons 
 
 
 
 rightfully in possession. 
 
 § 192. Kinds of injuries. — Wrongs that may be 
 done to the owner of personal property through fraud, 
 neghgence and nuisance have been considered. There 
 remain to be considered wrongs : ( 1 ) By direct force 
 injuring or disturbing the owner in his possession. (2) 
 By conversion or depriving the owner of his property. 
 (3) By neglect to restore to the owner upon demand 
 property to which he is entitled. 
 
 § 193. Trespass by force. — The first class of the 
 wrongs named is known as a trespass by force or vi et 
 armis. By this is intended only a direct injury by the 
 unlawful forcible disturbance of another in his possession 
 of the property. This may amount to a partial or com- 
 plete destruction of the property. The wrong going only 
 to the possession, it follows that one who has an interest 
 in the property, but has not actual or constructive pos- 
 session, is not entitled to complain of an injury as a 
 trespass vi et armis, but the injury as to him should be 
 redressed in some other form, as will be seen. 
 
 § 194. Possession. — The possession referred to 
 
 135
 
 136 ELEMENTARY LAW [§ 195 
 
 may be (1) that of the general owner, (2) that of one 
 having a special property, as a bailee, mortgagee, etc., or 
 (3) that of one having no title beyond mere peaceable 
 possession. The possession of a servant or agent is in 
 law the possession of the master or principal, and need 
 not be considered as a distinct possession. 
 
 Possession need not be actual. If one has the imme- 
 diate right to possession, he has the general property and 
 is said to have constructive possession. He may main- 
 tain an action for trespass against any wrongdoer, except 
 the person who has the special property and actual pos- 
 session. 
 
 Where there is a special property in goods, either the 
 general or special owner may sue a third person for 
 injury to the goods. 
 
 One who has mere peaceable possession has sufficient 
 possession to warrant a suit for trespass against any 
 wrongdoer except the owner. 
 
 § 195. The force. — The force used may be by the 
 wrongdoer personally, by his servants or by his animals. 
 It may be either express force, as in robbery, or implied 
 force, as in the act of placing poison before animals. 
 The degree of force is immaterial. To cut a rope tying 
 a cow would be a trespass. It must moreover appear that 
 the injury was proximate. 
 
 § 196. Conversion. — Any distinct act of dominion 
 wrongfully exerted by one person over another's prop- 
 erty, in denial of his right, or inconsistent with it, is 
 known as a conversion. It is the denial of the owner's 
 right that distinguishes conversion from trespass, for tres- 
 pass may sometimes be committed even though the own- 
 er's right to property and possession be fully conceded. 
 Whether the act be for the benefit of the wrongdoer or
 
 § 197] WRONGS TO PERSONAL PROPERTY 137 
 
 a third person, and whether it be for a temporary pur- 
 pose or otherwise, it is a conversion, if the dominion of 
 the owner be interfered with. It follows from this 
 that many wrongs that are trespasses may, at plain- 
 tiff's option, be treated as conversions. Anything that is 
 personal property, even though it have no value except 
 to the owner, may be the subject of a conversion. Who- 
 ever has the mere possession of goods, provided the pos- 
 session was not gained by force or fraud, is entitled to 
 maintain an action for conversion against any one except 
 the owner. And any one who has not the actual posses- 
 sion, but who has the right to immediate possession, may 
 maintain the action. 
 
 § 197. Conversion by persons rightfully in posses- 
 sion. — When a person who has a special property in 
 goods, as a bailee, mortgagee, etc., does any act in excess 
 of his authority, and inconsistent with the rights of the 
 general owner, his acts may be treated as a conversion. 
 If a mortgagee should sell the mortgaged property, as his 
 own, and in denial of the mortgage, it would be a con- 
 version; if sold subject to the terms of the mortgage, 
 however, it would not be. 
 
 Whoever buys the property must ascertain the title, 
 and if he takes possession and thereby denies the owner's 
 right, he is liable for conversion. The question of good 
 faith is not involved. All who participate in the conver- 
 sion, as seller or buyer, principal or agent, may be held 
 liable. But if one is innocently in possession of goods 
 belonging to another, and, before notice of the true 
 owner, surrenders them to the person from whom he 
 received them, he will not be liable for conversion. And 
 if, after notice of the true ownership, he surrenders pos- 
 session upon demand to the owner, he will not be held
 
 138 ELEMENTARY LAW [§ 198 
 
 liable either to the owner or to the person from whom 
 he received them. 
 
 § 198. Demand for possession. — It is a general rule 
 that where one has obtained possession of goods by force 
 or fraud, it is not necessary to demand possession from 
 the wrongdoer before bringing suit; and when the posses- 
 sion was originally rightful, but there has been such abuse 
 or excess of authority as to constitute a conversion, no 
 demand need be made. If, however, one has rightful 
 possession and does not deny the owner's title, it is 
 essential, in order to maintain the action, that a demand 
 shall have been made for possession, and a refusal to 
 deliver. Such demand and refusal need not be express; 
 they may be implied from conduct. An attempt to take 
 the property is usually a sufficient demand, and opposing 
 the attempt is a sufficient refusal. 
 
 § 199. Conversion by tenant in common. — As each 
 tenant in common has a right to possession of the thing 
 held in common, there can not be a conversion by one 
 who merely withholds possession from the other. But 
 anything that amounts to a loss or destruction of the 
 property by fault of the one in possession may be a con- 
 version. So it is generally held that a sale would be. In 
 some states it is held that if the property be in its nature 
 divisible, a demand by one owner for his share refused 
 by the other would be enough to establish a conversion. 
 
 § 200. Legal process. — Whenever property Is in- 
 terefered with under color of legal process, the person 
 interfering must confine himself within his lawful powers, 
 and for any excess he may be held liable as for a con- 
 version of the property. 
 
 An officer of the law may without process take a thief
 
 §201] WRONGS TO PERSONAL PROPERTY 139 
 
 together with the stolen property, or when he arrests a 
 felon may take his weapons. But generally, in order to 
 take property he must have process. When acting under 
 legal process he can not be held liable as for conversion, 
 if the process be issued by a court having jurisdiction, 
 and be on its face without suspicious earmarks, and if 
 he substantially follows the command of the writ. If he 
 exceeds or violates the command of the writ, as for 
 instance by selling without notice or injuring the goods, 
 he may be held liable for the conversion. 
 
 A magistrate is liable for issuing process if he acts 
 knowingly without jurisdiction, and a party who knowing- 
 ly sets a magistrate or officer in motion to act without 
 authority is liable. If property is sold at a judicial sale 
 upon a void judgment or void process, the purchaser may 
 be liable for conversion. 
 
 § 201. Remedies. — The remedies permitted by law 
 for injuries done to personal property are the following: 
 
 (1) Recaption, that is, the act of the owner in retak- 
 ing possession without suit. This he is permitted to do 
 provided he does it before complete possession has been 
 established in the wrongdoer. 
 
 (2) By an action at law. The forms of action under 
 which redress was given at common law were: Trespass, 
 to recover damages for direct injuries to property; trover, 
 to recover damages for the wrongful taking or detention 
 of property; detinue, to recover the possession of the 
 property itself; replevin, to recover the possession as well 
 as damages for taking property. Where the injury was 
 indirect or consequential, the action was in "trespass on 
 the case." 
 
 (3) In some cases a court of equity granted an in- 
 junction to prevent the doing or continuance of injury. 
 
 The remedies named substantially exist in all the
 
 140 ELEMENTARY EAW [§ 201 
 
 States. The forms of the common-law action have, how- 
 ever, been more or less modified and simplified by statutes. 
 As a rule, the action being personal, redress may be had 
 wherever jurisdiction can be acquired over the wrong- 
 doer, regardless of the place where the property is or the 
 wrong was committed.
 
 CHAPTER XVII 
 
 WRONGS TO REAL PROPERTY 
 
 Sec. 
 
 
 Sec. 
 
 202. 
 
 Ownership. 
 
 214. 
 
 203. 
 
 Dispossession. 
 
 215. 
 
 204. 
 
 Unlawful detention. 
 
 216. 
 
 205. 
 
 Remedies. 
 
 
 206. 
 
 Injuries to land without 
 possession. 
 
 217. 
 
 207. 
 
 Waste. 
 
 218. 
 
 208. 
 
 Kinds of waste. 
 
 219. 
 
 209. 
 
 Remedies. 
 
 220. 
 
 210. 
 
 Nuisance affecting land. 
 
 221. 
 
 211. 
 
 Remedies. 
 
 
 212. 
 
 Trespass upon land. 
 
 222. 
 
 213. 
 
 The boundary line. 
 
 
 Who may be a trespasser. 
 
 Lawful authority. 
 
 License impliedly given by 
 the owner. 
 
 Express license by the 
 owner. 
 
 Effect of statute of frauds. 
 
 License by law. 
 
 Legal process. 
 
 Condemnation proceed- 
 ings. 
 
 Effect of exceeding the li- 
 cense. 
 
 § 202. Ownership. — The owner of real estate is en- 
 titled to dominion as against all the world; the person 
 in possession is entitled to dominion as against all but 
 the one having a better right. Whoever interferes with 
 his dominion may be treated as a wrongdoer. The in- 
 juries that may be done to an owner as to his real 
 estate may be ( 1 ) by putting or keeping him out of 
 possession; (2) by injuring his land while in his posses- 
 sion. 
 
 § 203. Dispossession. — Under the common law a 
 classification of the wrongs of dispossession included some 
 which, by reason of changes in the law, are now of little 
 importance. Abatement, that is, where on the death of a 
 person a stranger entered before the heir, and intrusion, 
 that is, where a stranger entered before a remainderman 
 or reversioner, were wrongs that now do not differ in legal 
 
 141
 
 142 ELEMENTARY LAW [§ 204 
 
 effect from any other unlawful taking possession of land 
 in absence of the owner. The reason for the former 
 classification as distinct wrongs lies in the fact that for- 
 merly no ownership was full and complete without an 
 entry; now, however, there is no interval and the title 
 and complete ownership vest immediately. The wrong of 
 disseizin, that is, entering upon land and depriving the 
 owner of his possession, is the equivalent of all wrongs 
 wherein the entry was wrongful from the beginning, and 
 continued to be so. The wrong may be committed by 
 one who gains possession for a limited purpose and 
 wrongfully exceeds the authority granted, whereby the 
 entire possession is held to be wrongful from the begin- 
 ning. 
 
 § 204. Unlawful detention. — Where the original 
 taking possession was not unlawful, but the wrong con- 
 sists in detaining the possession, this is likewise a dis- 
 possession of the owner. This may happen, in case of 
 a lease for a definite term or during the life of another 
 person, by the expiration of the term or by the death 
 of the person ; the tenant then holding over without 
 right. It may also happen in case of an estate upon con- 
 dition where the nonperformance of the condition forfeits 
 the estate, and the tenant nevertheless holds the land. 
 
 § 205. Remedies. — An owner's remedy for being 
 deprived of possession of real estate may be by his own 
 act or by legal process. He may by his own act enter 
 upon and take possession of the land, provided he does 
 not thereby commit a breach of the peace. He is not 
 allowed the remedy by his own act, if the holder of the 
 land has an apparent right to hold it, but in such cases 
 the owner must resort to his remedy by action at law. 
 
 Under the common law various forms of action were
 
 § 207] WRONGS TO RKAL PROPERTY 143 
 
 used for the recovery of real estate, but by judicial deci- 
 sion and legislative enactment, these forms have been 
 gradually displaced and most of the law relative to them 
 is obsolete. Under modern law the almost universal 
 remedy for trying the title to lands is the action for 
 possession, and this has been so simplified that it does not 
 correspond to the cumbersome forms that prevailed under 
 the old law. Where the title to the land is not in ques- 
 tion, but only the right to possess it, a simple and prompt 
 remedy is generally provided in an action before a justice 
 of peace for possession. An owner who has been de- 
 prived of possession is entitled by an action for damages 
 to recover the profits of the land during the time the 
 wrongdoer held possession, and it is usual to combine 
 the claim for damages with the suit for possession. 
 
 § 206. Injuries to land w^ithout dispossession. — The 
 
 wrongs to real estate that have been enumerated have 
 been by depriving the owner of possession; it remains 
 to consider how the owner's land may be damaged with- 
 out affecting his title or possession. These wrongs may 
 be done ( 1 ) by the tenant in possession to the damage 
 of another who has an interest; or (2) by a stranger. 
 Wrongs of the former class are called waste; of the 
 latter class, may be either nuisance or trespass by breaking 
 the close. These will be discussed in order. 
 
 § 207. Waste. — Waste is the doing or permitting 
 lasting damage to the property by the person in posses- 
 sion, to the injury of some other person who has an 
 interest therein. It may be committed, for example, by 
 a life tenant as against a remainderman. The interest 
 which qualifies one to complain of waste must be a vested 
 interest.
 
 144 EI.EMENTARY LAW [§ 208 
 
 § 208. Kinds of waste, — Waste may be voluntary 
 or permissive. Instances of voluntary waste are pulling 
 down houses in whole or part, cutting valuable timber, 
 removing a material part of the soil. In general, a 
 tenant is answerable for waste, even though the act be 
 done by a stranger, but he has his remedy over against 
 the stranger. Permissive waste arises by negligence. 
 Where the tenant is under obligation to keep the premises 
 in repair, but negligently suffers the premises to become 
 ruinous, it is waste. 
 
 § 209. Remedies. — At common law waste worked 
 the forfeiture of the estate of the tenant; and such is 
 still the law in some states. The most usual forms of 
 remedy are the action for damages and injunction to 
 prevent threatened or continued waste. 
 
 § 210. Nuisance affecting land. — The nature of 
 nuisance has been shown in the chapter treating of that 
 subject. So far as relates to its effect upon real estate, 
 a nuisance must cause some material and sensible injury 
 to the property or its value. Anything done upon neigh- 
 boring property, or upon highways so as to affect in- 
 juriously the property, may be deemed a nuisance. To 
 occupy unreasonably the street in front of one's place 
 of business and block the path, to carry on offensive busi- 
 ness so that the property becomes uninhabitable, or to 
 do anything whereby the crops or trees on land are 
 blighted is a nuisance. 
 
 §211. Remedies. — The redress for nuisances caus- 
 ing damage to land is not different from that for other 
 nuisances. The landowner may abate the nuisance if 
 he acts reasonably and without breach of the peace. He
 
 § 213] WRONGS TO REAL PROPERTY 145 
 
 may recover damages and judgment abating the nuisance, 
 or he may have injunction. 
 
 § 212. Trespass upon land. — In the w^rongs of nui- 
 sance the wrongdoer causes indirect or consequential 
 injury without going upon the property itself. Where 
 the injury results from the wrongdoer going upon the 
 land, the wrong is called a trespass by breaking the close. 
 
 The owner, or the person in possession who is 
 regarded as the owner, is entitled to exclusive dominion 
 over the land. He may repel any one who attempts to 
 infringe his right. For his protection the law supposes 
 that every man's land is inclosed, whether there actually 
 be a fence or not; and whenever the boundary line is 
 crossed it is assumed that the close is broken and that 
 damage has resulted. It may be generally stated, that 
 every one who crosses the landowner's boundary line is a 
 trespasser by breaking the close unless he does so by law- 
 ful authority. 
 
 § 213. The boundary line. — The boundary of land 
 extends perpendicularly to the center of the earth and to 
 the sky. Technically, an aeronaut would be a trespasser. 
 Where the land is adjacent to a highway, the rule is 
 generally that the line extends to the center of the 
 highway. The landowner owns the soil underlying the 
 highway, subject only to the public easement. Conse- 
 quently, he may treat as a trespasser one who violates 
 the easement, and he may recover against the public itself 
 if additional servitude is imposed. If the land is adjacent 
 to a stream, the line extends to the center of the stream, 
 or, if a fresh water navigable stream or lake, to low- 
 water mark only. 
 
 Any one who takes trees or herbage from the highway, 
 or its soil, or who deposits material in the highway, or 
 10 — Elem. Law.
 
 146 ELEMENTARY LAW [§214 
 
 who cuts ice from a stream, may be liable as a trespasser 
 to the adjacent landowner. 
 
 § 214. Who may be a trespasser. — It is not essen- 
 tial in order to make a man a trespasser that the whole 
 of his person shall cross the line. If any part of his per- 
 son or anything physically under his control pass the line 
 it is sufficient. So, too, a man is answerable for the 
 trespasses of his cattle, and for the trespasses of persons 
 acting under his authority. 
 
 § 215. Lawful authority. — An enumeration of the 
 cases where one has no right to cross a landowner's line 
 would be too large; the law can be more easily ascer- 
 tained by examining the cases where one is justified in 
 entering. The right to enter is in law known as a 
 license. License may be given (1) impliedly by the 
 owner, (2) expressly by the owner, or (3) by the law. 
 These will be considered in the order stated. 
 
 § 216. License impliedly given by the owner. — A 
 dealer who exposes goods for sale impliedly authorizes 
 the public to enter his store; artisans, physicians, lawyers, 
 who hold themselves out as ready to serve others, implied- 
 ly invite the public to enter. The owner of an easement 
 has implied license to enter and repair it. And where a 
 landowner sells goods or is in wrongful possession of 
 another's goods, there is an implied license to enter. 
 Whoever holds himself out in any way to attract nat- 
 urally others to enter impliedly invites them to do so. 
 Every landowner impliedly licenses his neighbors and 
 strangers to enter for any proper occasion, as business, 
 social visits, to make inquiries and the like. The nature 
 and extent of this implied license is controlled and
 
 § 218] WRONGS TO RUAI. PROPERTY 147, 
 
 measured by the kind of premises, the purpose of the 
 entry and the general custom of the community. 
 
 § 217. Express license by the owner. — A mere li- 
 cense exists wherever the owner grants to another a 
 right to enter, without giving him an interest in the 
 land. Such a Hcense is personal to the licensee and it 
 is subject to revocation by the landowner at any time 
 before it is acted on. But when acted on by the 
 licensee, it is irrevocable to the extent it has been acted 
 on, though it may be revoked as to the part not acted on. 
 
 If the license is "coupled with an interest," as it is 
 called, it can not be revoked. For instance, if a land- 
 owner sell cattle on his land, giving the right to the 
 owner to leave them for a certain time, visit them daily 
 and take them away, the landowner can not revoke the 
 license. 
 
 § 218. Effect of statute of frauds. — The rule that 
 a license acted upon becomes irrevocable has been car- 
 ried to the extent of practically overriding the statute 
 of frauds in one respect. The statute of frauds provides 
 that no conveyance of land or any interest therein shall 
 be enforcible unless in writing. Nevertheless, it often 
 happens that men will grant to each other licenses by 
 parol to enjoy interests in each other's lands, and in face 
 of the prohibition of the statute, will act upon them. 
 This is especially noticeable in the matter of parol 
 licenses to overflow land for mill purposes. By acting 
 on this license, the licensee acquires an interest in the 
 overflowed land, which the statute says is unen forcible 
 because granted verbally. Yet the injustice of allowing 
 the landowner to revoke his license, after the licensee has 
 incurred great expense on its faith, is so glaring that 
 courts of equity will enjoin the revocation.
 
 148 ELi:ME;NTARY LAW [§ 219 
 
 § 219. License by law. — This sort of license is of 
 an entirely different nature from those that have been 
 considered. It arises not out of the consent of the 
 owner, either express or implied, but often exists con- 
 trary to the intent of the owner. It rests upon motives 
 of public policy and the general welfare of the com- 
 munity. 
 
 For example, in time of conflagration or other public 
 calamity, officers and even private persons are justified 
 in entering on any premises or into any building neces- 
 sary or reasonably convenient to check the disaster; and 
 they may do any damage that is reasonably necessary 
 even to the extent of a total destruction. 
 
 If for any reason a public highway becomes im- 
 passable a traveler has a license by law to pass around 
 the obstruction by going over the adjacent land, and for 
 that purpose may remove a fence. 
 
 § 220. Legal process. — Officers charged with the 
 execution of legal process have a license by law to enter 
 upon land when necessary to do so. Ordinarily the 
 license extends only to the land and not to the dwelling- 
 house, which is regarded as the castle of the owner. But 
 in case of felony or breach of the peace the officer may 
 also enter the house, and if need be break open the door 
 to effect an entrance. So, also, if the command of the 
 writ necessarily involves entering the house, as in the 
 case of search warrants or writs for possession, the 
 officer is entitled to enter forcibly. 
 
 § 221. Condemnation proceedings. — Similar to en- 
 try under legal process is the entry for purposes of con- 
 demnation. Where the statute provides that an owner's 
 land may be taken for certain public purposes, upon com- 
 pensation being made, the procedure must be strictly
 
 § 222] WRONGS TO REAL PROPERTY 149 
 
 followed, and any violation or excess may be deemed a 
 trespass. Such statutes usually provide for a preliminary 
 survey of the ground by the parties contemplating the 
 condemnation proceedings, and for the purpose of mak- 
 ing such surveys an entry may be made without incurring 
 the liability for trespass. 
 
 § 222. Effect of exceeding the license. — The na- 
 ture and extent of the license being ascertained, the 
 Ucensee is bound to confine himself within its limits. If 
 tie goes beyond he loses all protectio;3 ?nd is regarded 
 as a trespasser from the beginning.
 
 CHAPTER XVIII 
 
 WRONGS DONE BY ANIMALS 
 
 Sec. 
 
 223. Injuries by animals. 
 
 224. Trespass upon land by- 
 
 animals. 
 
 225. Duty of owner by com- 
 
 mon law. 
 
 Sec. 
 
 226. The law in the United 
 
 States. 
 
 227. Remedies. 
 
 228. Animals not trespassing. 
 
 229. Owner's knowledge of 
 
 danger. 
 
 § 223. Injuries by animals. — The subject of injury 
 by animals is in some respects peculiar, partaking as it 
 does of the nature both of nuisance and negligence. In 
 this place, injuries caused by the voluntary act or pur- 
 pose of the owner of the animals will not be considered, 
 for such injuries would usually be deemed an assault and 
 battery by the owner himself. 
 
 In considering the law, a distinction must be kept in 
 mind from the outset between acts that are a trespass on 
 land and acts that are not. 
 
 § 224. Trespass upon land by animals. — Every un- 
 warrantable entry by one's animals upon the land of 
 another is a trespass, whether the land be enclosed or 
 not. If any part of the animal cross the line the trespass 
 is complete. 
 
 § 225. Duty of owner at common law. — At com- 
 man law every owner of animals was bound at his peril 
 to keep his animals from straying upon another's land. 
 The duty was absolute, and was not discharged by the 
 
 150
 
 §228] WRONGS done: by ANIMAI.S 151 
 
 exercise of the highest degree of care. Hence, no ques- 
 tion of negHgence was involved. The absolute obligation 
 attached, however, only as to such animals as, from their 
 nature, were capable of damaging land or crops. And 
 an exception was made in favor of the owners driving 
 cattle along a highway, and in such cases tlie liability 
 was not absolute, but the owner was relieved if he exer- 
 cised ordinary care to prevent the trespass. 
 
 § 226. The law in the United States. — The com- 
 mon-law rule of absolute liability for injuries done by tres- 
 passing animals is generally in force in the United States. 
 In some the wrong is not treated as negligence ; in others 
 it is called negligence, but the negligence is conclu- 
 sively presumed from the fact of trespass. Statutes 
 and judicial decisions in some states have modified the 
 English rule to some extent. 
 
 § 227. Remedies. — In addition to the usual remedy 
 by an action for damages, the landowner was entitled 
 to take possession of the trespassing animal and keep it 
 until the damage was paid. Or he could drive the 
 animal from his premises to the highway, using no more 
 force than needful. For any excess he would in turn 
 become liable himself. 
 
 § 228. Animals not trespassing. — It was formerly 
 held at common law that the owner of a wild beast, or 
 a domestic animal known to be dangerous, was bound at 
 his peril to keep it confined, and that it would be no 
 defense that the owner exercised care to prevent injury. 
 The dangerous animal was deemed a nuisance and the 
 keeping it was an unlawful act. 
 
 The present rule is that for injuries done by an 
 animal, other than by trespass, the owner is not absolute- 
 ly liable, but liable only for a failure to use ordinary
 
 152 i;i.KMENTARY LAW [§ 229 
 
 care. Whether the animal be dangerous or tame, the 
 owner is hable only for negligence. The care required 
 must, of course, be proportioned to the danger to be 
 apprehended. In order to charge an owner or keeper 
 for injuries by animals, it is necessary to show that he 
 had knowledge of the dangerous propensity and failed to 
 take proper precautions. 
 
 § 229. Owner's knowledge of danger. — Distinction 
 is made, so far as the evidence of negligence in the owner 
 is concerned, between (1) animals naturally vicious and 
 (2) tame animals that have become vicious. 
 
 As to naturally wild and vicious animals, the presump- 
 tion is conclusive that the owner knew them to be dan- 
 gerous. 
 
 As to animals that have broken through the tame- 
 ness of their nature and becofne vicious, there is no pre- 
 sumption that the owner knew of the dangerous pro- 
 pensity, but proof of a single breach brought home to 
 the owner's notice is sufficient. Thenceforward they are 
 to be treated the same as naturally wild animals. 
 
 As to tame domestic animals, the owner is bound only 
 for a negligent failure to keep them confined, and then 
 only for such injuries as from their nature they are 
 likely to commit.
 
 CHAPTER XIX 
 
 INTERFERENCE WITH DOMESTIC AND BUSINESS 
 
 RELATIONS 
 
 Sec. 
 
 
 Sec, 
 
 230. 
 
 Introductory. 
 
 
 231. 
 
 Enticing of servant and 
 
 
 
 seduction of servant or 
 
 236. 
 
 
 daughter. 
 
 
 232. 
 
 Interference with marital 
 duties. 
 
 237. 
 
 233. 
 
 Interference with con- 
 tractual duties. 
 
 238. 
 
 234. 
 
 Interference with business 
 relations by force or 
 treats of force. 
 
 239, 
 
 235. 
 
 Intentional injury to busi- 
 
 240. 
 
 ness relations consti- 
 tutes a prima facie tort. 
 
 Justification for prima 
 facie torts. 
 
 Boycotting noncompeti- 
 tors. 
 
 Combinations and con- 
 spiracies in competition. 
 
 General strikes to secure 
 better terms from em- 
 ployer. 
 
 The remedy. 
 
 § 230. Introductory. — Not only does the law seek 
 to protect men in their persons, property and reputations, 
 but also in their domestic and business relations. From 
 early times domestic relations have been zealously pro- 
 tected and in recent years great emphasis has been put 
 upon the proper protection of business relations. In the 
 complex conditions of modern life where all individuals 
 are mutually dependent upon business relations the 
 importance of protecting them and of keeping open the 
 opportunities for their easy and effective formation is 
 obvious. "A free market for goods and labor is the 
 economic ideal of this branch of the law, and any inter- 
 ference with this must show a justification." An inter- 
 ference which is not justified is illegal and the offending 
 party is liable in damages to the party injured. 
 
 § 231. Enticing of servant and seduction of servant 
 
 153
 
 154 ELEMENTARY LAW [§ 232 
 
 or daughter. — It was formerly held that where a serv- 
 ant was enticed away from the employment of his master 
 leaving work unfinished that the master was entitled to 
 recover damages from the offender. The theory of this 
 rule was that the master had a right to the services of 
 his employe at least through the completion of any task upon 
 which the servant was engaged. On much the same theory 
 an action has lain from early times for the seduction 
 and debauching of a daughter or female servant. The 
 foundation of this action was to recover damages for the 
 loss of services rendered by the servant or daughter. In 
 modern times courts have allowed very slight proof of 
 service to be sufficient where a parent is suing for the 
 seduction of his daughter. In some cases the proof of 
 loss of service has been little better than a fiction and the 
 parent has been allowed to recover for injury to his feel- 
 ings which, in most cases, is the chief element of damage. 
 
 § 232. Interference with marital duties. — Where a 
 woman is induced to live apart from her husband through 
 improper motives of the defendant the husband is entitled 
 to recover in an action for damages, and likewise, a wife 
 may recover damages from a defendant who by improper 
 persuasion deprives her of her husband's society. A com- 
 mon example of the exercise of this right is a suit 
 brought by one woman against another for the alienation 
 of her husband's affections. 
 
 § 233. Interference with contractual duties. — It is 
 the policy of the law to protect contractual obligations 
 from the malicious interference of a third party. Thus, 
 where A is under contract to work for B, and X induces 
 A to break the contract, B can recover from X in an 
 action for damages, if the motive of X was to injure 
 the plaintiff or to benefit himself at the cost of the plain-
 
 § 235] INTERFERENCE WITH BUSINESS RELATIONS 155 
 
 tiff. Thus where an opera singer was under contract to 
 sing for three months at the plaintiff's theatre and the 
 manager of a rival theatre induced her to break that 
 contract and sing at his own theatre, he was held liable 
 to respond to the plaintiff in damages. 
 
 § 234. Interference with business relations by force 
 or threats of force. — It is unlawful to use force or 
 threats of force to prevent one person from being em- 
 ployed by another, from working for him, or from doing 
 business with him. If one schoolmaster by setting up a 
 new school next to his competitor takes away the 
 patronage of the rival school, he is not guilty of a legal 
 wrong, for it is the policy of the law to favor rather than 
 to stifle competition. Should the new schoolmaster, how- 
 ever, frighten the scholars by force from attending the 
 rival school, he would then be liable for damages. A 
 common illustration of the application of this principle 
 is found in modern labor disputes where strikers place 
 pickets to prevent persons from patronizing or working 
 for their former employers. Where they attempt to 
 achieve this end through force or through threats of 
 force, their actions are illegal and the plaintiff may 
 recover damages. 
 
 § 235. Intentional injury to business relations con- 
 stitutes a prima facie tort. — When intentional injury 
 was done to business relations through peaceful and 
 persuasive methods the earlier cases were in hopeless 
 conflict as to whether or not the injured party could 
 recover and what conditions were essential to recovery. 
 The fundamental principles involved never received any 
 very definite formulation. The same is true today and 
 the law on this subject is very unsettled, but the 
 fundamental problem has been restated so as to bring out
 
 156 e;i,Ementary law [§236 
 
 in clear relief the important issues involved. The 
 fundamental principle as restated is that an intentional 
 injury to the business of the plaintiff, though done 
 through persuasive methods, is a prima facie tort and 
 that the burden is upon the defendant to justify his 
 action. For example, if the members of a labor union 
 refuse to work for their employer unless he will establish 
 a closed shop, and as a result the employer discharges 
 all the nonunion men in his employ, do the men so dis- 
 charged have an action for damages against the labor 
 union? This is clearly a prima facie tort and the ques- 
 tion arising is as to the justification. What constitutes 
 a justification is a matter which is not yet settled 
 and upon which the authorities are in conflict. 
 
 § 236. Justification for prima facie torts. — The pol- 
 icy of the law in dealing with business relations is gen- 
 erally favorable to competition and consequently there is 
 a tendency to hold that fair and lawful competition is a 
 justification for the resulting injuries to a competitor. 
 If the defendant goes into the grocery business across 
 the street from the plaintiff's store and runs the busi- 
 ness so efficiently as to deprive the plaintiff of his cus- 
 tomers by giving them cheaper and better service, there 
 can be no doubt but that the courts everywhere would 
 hold the public benefits of such competition to afford 
 adequate justification for the prima facie tort. The 
 difficult questions arise where the forms of competition 
 are more strenuous and the public benefits less certain. 
 Where a defendant, for example, threatens to discharge 
 any of his employes found trading at the competing store 
 of the plaintiff, thereby depriving him of their business, 
 there is a prima facie tort for which the justification is 
 not so clear. It is true that the defendant is engaged 
 in competition but the public benefits of this particular
 
 § 237] INTERFERENCE WITH BUSINESS RELATIONS 157 
 
 kind of competition are by no means clear. This kind 
 of competition has been upheld in some courts, but there 
 may be some doubt as to whether it would be generally 
 followed. 
 
 Where the injury to the plaintiff is intentional and 
 malicious and it is not done by a competitor, the general 
 rule is that there is no justification and that the plaintiff 
 may recover though there is a minority view to the oppo- 
 site effect. Thus where an employer used his influence 
 over his employes to prevent them from trading at the 
 store of the plaintiff which was not in any way com- 
 peting with the defendant, his sole motive being ill will 
 towards the plaintiff, the court held that was no justifica- 
 tion for the resulting damage to tne plaintiff and allowed 
 him to recover. 
 
 § 237. Boycotting noncompetitors. — Boycotting 
 noncompetitors is generally held to be illegal. A typical 
 case is where * a labor union strikes for higher wages, 
 shorter hours or some similar purpose, and then to make 
 their strike more effectual against the plaintiff they refuse 
 to deal with or work for any of the customers of the 
 plaintiff. The courts have held this boycott to be unjusti- 
 fiable and have allowed the plaintiff to recover damages. 
 The theory of these cases seems to be that the rival 
 parties are not competitors engaged in securing business 
 or employment from a common third party, but that the 
 defendant is merely trying to coerce unwilling third 
 parties to take sides with it in the controversy with the 
 plaintiff. The plaintiff and the defendant are engaged in 
 a bargaining struggle with each other and neither may 
 secure allies by economic coercion. The general benefits 
 of such a struggle are not such as to justify the damages 
 resulting from the boycott.
 
 158 ELEMENTARY LAW [§ 238 
 
 § 238. Combinations and conspiracies in competi- 
 tion. — Where it is lawful for a single person to injure 
 the business of his competitor and justify his acts through 
 competition, is it lawful for a number of individuals to 
 combine to do the same things? Upon this question 
 there is a conflict among the courts. The question must 
 ultimately depend upon whether combinations of such 
 character are considered desirable to the public welfare. 
 Where the retail lumber dealers combined and refused 
 to buy of any wholesale dealer who sold directly to con- 
 sumers or lumber brokers of whom the plaintiff was 
 one, and the wholesale dealers therefore refused to sell 
 to the plaintiff, he was allowed to recover damages. The 
 theory of the case seemed to be that while a person could 
 deal effectively with one competitor, it would be unfair 
 and disastrous to competition to allow his competitors to 
 combine. However, there are probably more courts that 
 hold the contrary view. 
 
 This question is perhaps raised in its most interesting 
 form where a labor union strikes for a closed shop and 
 succeeds in having all the nonunion laborers discharged. 
 Are the latter entitled to a remedy? Obviously this ques- 
 tion depends upon whether labor unions and collective bar- 
 gaining are considered sufficiently desirable to justify the 
 damage done. Several states, including Massachusetts, 
 Pennsylvania, Maryland and Maine hold such strikes illegal 
 as against the nonunion men discharged. Other states in- 
 cluding New York, New Jersey, Indiana and Minnesota 
 hold the contrary view. 
 
 § 239. General strikes to secure better terms from 
 employer. — Under the early English decisions the rule 
 was that though any one was entitled to quit service 
 when he pleased, yet if two or more agreed that they 
 would quit together such agreement would be a legal
 
 § 240] INTKKFERENCE WITH BUSINESS RELATIONS 159 
 
 wrong. It was called a criminal conspiracy. Some of 
 the early American cases adopted these decisions as the 
 law. With the progress of society, the rule has been 
 greatly modified and made more liberal in favor of those 
 combining. It is now the law that workmen may as a 
 body agree not to work except on certain conditions, and 
 in pursuance of such agreement may quit service and they 
 will not be guilty of an unlawful act, so long as they 
 confine themselves to peaceable methods. It seems, how- 
 ever, by some late federal decisions, that if the quitting 
 necessarily involves the breach of contract, or if the 
 time of quitting be fixed so as to cause the greatest dam- 
 age, a combination to that end may be unlawful. 
 
 The means used must at all events be peaceable. As 
 soon as threats, menaces and intimidations enter into the 
 methods of the combination, there is an actionable v/rong, 
 and all the participators may be subject to civil as well as 
 criminal liability for conspiracy. 
 
 § 240. The remedy. — Whenever it is shown that 
 one has been damaged by an unlawful interference with 
 his domestic or business relations, he has a civil action 
 against the wrongdoers, and the injuries sustained are 
 recoverable as damages. 
 
 The more effective and prompt remedy, however, is 
 by writ of injunction, which will issue where irreparable 
 damage is threatened and the ordinary legal actions do 
 not afford adequate redress.
 
 PART III 
 
 CRIMINAL LAW 
 
 CHAPTER XX 
 
 CRIMINAL LAW 
 
 Sec. 
 
 
 Sec. 
 
 241. 
 
 Criminal law in general. 
 
 253. 
 
 242. 
 
 Crimes in the United 
 
 254. 
 
 
 States. 
 
 255. 
 
 243. 
 
 Capacity to commit crime. 
 
 
 244. 
 
 Criminal statutes, how 
 construed. 
 
 256. 
 
 245. 
 
 Infamous crimes. 
 
 
 246. 
 
 Crimes classified. 
 
 257. 
 
 247. 
 
 Compounding. 
 
 258. 
 
 248. 
 
 Attempts. 
 
 259. 
 
 249. 
 
 Aiding, counseling, etc. 
 
 260. 
 
 250. 
 
 Uulawful intent and overt 
 
 261. 
 
 
 act must unite. 
 
 262. 
 
 251. 
 
 Criminal carelessness. 
 
 
 252. 
 
 Ignorance or mistake of 
 fact. 
 
 
 Ignorance of law. 
 
 Self-defense. 
 
 Offenses committed by 
 
 wife. 
 Where principal liable 
 
 criminally for offense of 
 
 agent. 
 Principal and accessories. 
 Drunkenness. 
 Insanity. 
 Punishment. 
 Jurisdiction of crimes. 
 Territorial jurisdiction of 
 
 crimes. 
 
 § 24L Criminal law in general. — As indicated in 
 a preceding- chapter the criminal law is that portion of 
 the law which is concerned primarily with the punishment 
 of wrongs as distinguished from that part of the law 
 devoted to the enforcement of rights. In a civil suit the 
 object of the state is to compel one person to make 
 reparation for any injury his acts or omissions have 
 caused to the rights of another. In such cases the state 
 leaves the injured party to his own initiative as to 
 whether or not he will bring suit against the offending 
 
 160
 
 § 243] CRIMINAL IvAW 161 
 
 party. There are certain acts, however, which are of 
 such a nature as to so injure society as a whole as well 
 as damage the private interests of individuals, that the 
 state sees fit to prohibit them by law. When the law 
 is violated, the state, not content to leave the wrongdoer 
 to no other punishment than such as he may suffer at 
 the hands of the injured individuals in a civil suit, prose- 
 cutes him for the violation of the law and seeks to pun- 
 ish him for the wrong. The action is brought in the 
 name of the state and by the officers of the state for the 
 purpose of enforcing the penalty prescribed for the par- 
 ticular offense. To punish and thus to prevent those 
 acts which the state has determined to be 'inimical to 
 the public welfare is the function of the criminal law. 
 
 § 242. Crimes in the United States. — A crime is 
 an act committed or omitted in violation of law. The 
 right to punish criminals rests upon gounds of policy, and 
 is absolutely necessary for the preservation of society. 
 Crimes are defined and their punishment regulated by the 
 common law or statute law. There are no common-law 
 crimes which are recognized by the federal courts, their 
 criminal jurisdiction being limited to offenses defined by 
 the laws enacted by congress. In some of the states of 
 the Union there are no offenses punishable as crimes 
 except those which are made so by statutory law. 
 
 § 243. Capacity to commit crime. — An act can not 
 be criminal unless the actor is a responsible being, capable 
 of knowing that the act is wrong and, in some states^ 
 having power to control his actions. An idiot or a 
 lunatic, or a young child, is incapable of committing 
 crime. Under seven years of age a child is conclusively 
 presumed to be incapable; between the ages of seven and 
 fourteen it is incumbent on the prosecution to prove 
 11 — Elem. Law.
 
 162 ELEMENTARY I.AW [§ 244 
 
 capacity; persons over the age of fourteen are presumed 
 to be capable. Aside from these natural infirmities of 
 idiocy, lunacy and infancy, persons whose powers have 
 become enfeebled by disease, drunkenness or any cause, 
 to such an extent that they have lost the control of tlieir 
 wills and are unable to know right from wrong or to 
 understand the nature of the act, are not criminally 
 responsible in some jurisdictions although they may be 
 liable in a civil action for the wrongs they may inflict 
 upon others. 
 
 § 244. Criminal statutes, how construed. — Crimi- 
 nal statutes are construed liberally in favor of the accused. 
 It matters not how immoral an act may be, or how in- 
 jurious to society, it can not be punished as a crime unless 
 it is prohibited by law. 
 
 § 245. Infamous crimes. — Infamous crimes are 
 held by the federal courts to be such as are punished by 
 imprisonment at hard labor. The state statutes declaring 
 what are and what are not infamous crimes are not 
 harmonious. 
 
 § 246. Crimes classified. — Crimes are again divided 
 into felonies and misdemeanors, felonies being such 
 offenses as are punishable with death or imprisonment 
 in the state prison, and misdemeanors being offenses of 
 a lower grade, for which lighter punishments are pre- 
 scribed. There are the usual statutory provisions. At com- 
 mon law the test of felony was the forfeiture of the 
 goods. 
 
 § 247. Compounding. — Compounding an offense is 
 where one for a consideration agrees not to prosecute the 
 offender or to stop a prosecution already begun.
 
 § 250] CRIMINAL LAW 163 
 
 § 248. Attempts. — x\ttempts to commit crime are 
 sometimes declared to be crimes themselves. A mere 
 naked purpose to commit a crime, however, unaccom- 
 panied by an act in furtherance of the purpose, is not 
 punishable as an attempt. The criminal law deals only 
 with overt acts. It sometimes happens that a man with 
 deliberate purpose attempts to commit a crime which for 
 some cause unknown to him he can not commit, as to pick a 
 pocket which is empty, or to shoot at another with an 
 unloaded gun. In such cases he is generally held criminal- 
 ly responsible. 
 
 § 249. Aiding, counseling, etc. — Advising, coun- 
 seling, encouraging or soliciting another to commit a 
 crime is a punishable offense, but of this more will be 
 said when we come to speak of accessories. 
 
 § 250. Unlawful intent and overt act must unite. 
 — In every crime at the common law there must be a 
 union of the unlawful intent and the overt act, and both 
 act and intent must be proved. This is not true, however, 
 in the case of many statutory offenses, such as violat- 
 ing the speed limit. In most cases the intent is inferred 
 from the act itself, or it may be proved by circumstantial 
 evidence. There is much confusion in the decisions of 
 the courts of the various states as to the character of the 
 overt act necessary to constitute the offense. Thrusting 
 the hand into an empty pocket with intent to steal has 
 been declared by some courts to be an attempt to commit 
 larceny, and the contrary is held by other courts. So of 
 shooting at another with a blank cartridge. Bishop says, 
 as we think correctly, after carefully examining the con- 
 flicting decisions, "on the whole we may deem the true 
 doctrine to be that where the object is not accomplished, 
 simply because of obstructions in the way, or because of
 
 164 ELEMENTARY LAW [§251 
 
 the want of the thing to be operated upon, where the 
 impediment is of a nature to be wholly unknown to the 
 offender, who used appropriate means, the criminal at- 
 tempt is committed." 
 
 § 251. Criminal carelessness. — AVhere through the 
 wanton and reckless or grossly negligent conduct of one 
 an accident happens which causes death, the act is crimi- 
 nal, as where an engineer in charge of a locomotive neg- 
 lects his duty, or one on a building throws missiles from 
 a house into a public street where persons are passing. 
 
 § 252. Ignorance or mistake of fact. — Ignorance 
 or mistake of fact will sometimes deprive an unlawful 
 act of its criminal character, as where one takes the prop- 
 erty of another supposing it to be his own, or obstructs 
 a highway without knowing it to be a highway, but where 
 a statute makes an act unlawful irrespective of guilty 
 knowledge, ignorance or mistake is no defense. 
 
 § 253. Ignorance of law. — Ignorance of law is no 
 excuse for the commission of a crime, even where the 
 statute making the act criminal has been enacted so 
 recently as to make it impossible that the accused should 
 have known of its existence. Such ignorance would go 
 far to mitigate the punishment, and would give good 
 grounds for an appeal to the pardoning power in cases 
 of conviction. 
 
 § 254. Self-defense. — Self-defense is a right which 
 may be asserted by any person, where he is in apparently 
 imminent danger of suffering either loss of life or limb 
 or great bodily harm. If the conduct of the assailant 
 is such as to produce in the mind of a reasonable person 
 a belief that such harm is intended, the person assailed
 
 § 257] CRIMINAL LAW 165 
 
 may defend himself even to the point of killing his 
 assailant, though the danger was not real but only appar- 
 ent. The right of self-defense, but not to the point of 
 taking life, also exists where the impending danger is not 
 so serious. 
 
 § 255. Offenses committed by wife. — An offense 
 committed by the wife in the presence of the husband is 
 prima facie done by his coercion, though this presumption 
 may be overcome by evidence showing that she acted upon 
 her own independent volition, and in such a case she and 
 she alone is criminally responsible. 
 
 § 256. Where principal liable criminally for of- 
 fense of agent. — A principal is not liable for the crimi- 
 nal acts done by his agent unless the agent is acting under 
 orders from the principal. The same rule applies to 
 master and servant. Where an agent or servant is put 
 in charge of a business, such as publishing a newspaper 
 or keeping a saloon, and a criminal libel is published in 
 the paper or liquor is unlawfully sold in the saloon, the 
 owner of the paper or the proprietor of the saloon may be 
 punished criminally for the act of the agent or servant. 
 
 § 257. Principal and accessories. — In the commis- 
 sion of crimes there may be principals and accessories. 
 To constitute one a principal he must be actually or con- 
 structively present when the crime is committed, as where 
 one does the act, and another stands near by to give 
 assistance or give warning of the approach of the officers. 
 In such case both are principals. 
 
 An accessory before the fact is one who is not the 
 chief actor in the commission of a crime, nor near enough 
 at the time to give assistance, but procures, counsels or 
 commands another to commit it. An accessory after the
 
 166 ELEJMENTARY LAW [§ 258 
 
 fact is one who, knowing that a crime has been com- 
 mitted, receives, relieves, comforts or assists the criminal. 
 
 § 258. Drunkenness. — Voluntary drunkenness will 
 not excuse crime. Where, as a result of habitual drunken- 
 ness, one becomes permanently diseased to the extent 
 that he has lost his will power and is incapable of 
 knowing right from wrong, he is incapable of com- 
 mitting crime. Some courts have held that voluntary 
 drunkenness aggravates a crime, but the better opinion is 
 now to the contrary. Drunkenness of the accused at the 
 time of the commission of the offense may be given in 
 evidence to show want of malice, premeditation or intent. 
 
 § 259. Insanity. — Insanity, where it is such as to 
 prevent the accused from distinguishing right from wrong, 
 or appreciating the nature of his act, will relieve him 
 of criminal responsibility, and if from all the facts in 
 the case the jury have a reasonable doubt as to the 
 sanity of the accused they should acquit. 
 
 § 260. Punishment. — Punishment is inflicted for 
 the public good. The same act may be punishable as a 
 crime and be a wrong to the individual citizen, in which 
 case the punishment of the crime does not prevent the 
 citizen from seeking redress in a civil action for the 
 damage done to him personally. The individual who 
 suffers in such a case may compromise with the offender 
 and waive his right to redress, but this is no bar to a 
 prosecution of the offender by the state. 
 
 The object of punishment is to prevent crime, and this 
 is effected by imposing pecuniary fines and by placing the 
 offender under restraint for a given period of time, with 
 the double view of reforming the prisoner and deterring 
 others from committing like offenses, and in cases of
 
 § 262] CRIMINAL LAW 167 
 
 murder, high treason and other crimes of a heinous char- 
 acter, capital punishment is sometimes inflicted. In many 
 states the jury passes upon the question of the prisoner's 
 guilt, and the court fixes the measure of punishment 
 within the limits prescribed by the statute. In other 
 states the jury has this power. In the federal courts the 
 jury passes only upon the question of the prisoner's guilt. 
 Sometimes, in addition to the penalties of fine and im- 
 prisonment, the offender is disfranchised and is made 
 incompetent to testify as a witness. 
 
 § 261. Jurisdiction of crimes. — The jurisdiction to 
 try and punish offenders against state laws is lodged in 
 the courts of the state within whose borders the offenses 
 are committed. Offenses against the laws of the United 
 States are within the exclusive jurisdiction of the federal 
 courts within their respective districts. This is what may 
 be called geographical jurisdiction. Jurisdiction may de- 
 pend also on the class of crimes the court may take 
 cognizance of. Petty offenses are tried by magistrates 
 without the formality of indictment or information, while 
 graver charges are only cognizable by superior courts, in 
 which the indictment is preferred by the grand jury and 
 the trial is by a petit jury. As to crimes committed on 
 the high seas, the jurisdiction of nations is determined 
 by treaties and the law of nations. 
 
 § 262. Territorial jurisdiction of crimes. — Ordi- 
 narily, criminal laws have no force beyond the boundaries 
 of the state enacting the law. But cases arise where 
 crimes are committed partly in one state or county and 
 partly in another. If one enters into a conspiracy with 
 others to commit a crime in another state, and the crime 
 is committed, he may be tried and punished in the state 
 where the crime is committed, though before the trial he
 
 168 ELEMENTARY LAW [§ 262 
 
 may never have been personally within the limits of that 
 state. So if one stands near a boundary line and shoots 
 across it, and the shot takes effect upon a person in 
 another state or county he may be tried in the jurisdic- 
 tion where the shot took effect. If a fatal blow is given 
 in one state and the victim removes to another before 
 death ensues, the assailant must be tried in the jurisdiction 
 where the blow was given, though some courts hold that 
 jurisdiction rests concurrently in the courts of both 
 localities. Offenses committed on board ships are gen- 
 erally punishable in the country to which ships belong. 
 Crimes committed on private ships in foreign ports are 
 punishable in foreign courts if they are of sufficient 
 gravity to endanger the peace and tranquility of the 
 port, but otherwise they are punishable by the courts of 
 the country to which the ship belongs. The rights of 
 subjects of one country traveling or residing in another 
 are generally regulated by treaty stipulations. In the 
 absence of such stipulations the rules as above stated 
 will prevail. By the statutes of some states, where a 
 theft is committed in one state and the goods are carried 
 to another, the state in which the offense originated has 
 exclusive jurisdiction, while a different rule prevails in 
 other states.
 
 CHAPTER XXI 
 
 CRIMINAL OFFENSES 
 
 Sec. 
 
 263. Criminal offenses in gen- 
 
 eral. 
 
 264. Abortion. 
 
 265. Adultery. 
 
 266. Fornication. 
 
 267. Incest. 
 
 268. Rape. 
 
 269. Seduction. 
 
 270. Abduction and kidnaping. 
 
 271. Bestiality — Sodomy. 
 
 272. Affray. 
 
 273. Arson. 
 
 274. Assault. 
 
 275. Assault and battery. 
 
 276. Assault with intent. 
 
 277. Justification for assault. 
 
 278. False imprisonment. 
 
 279. Barrarty, champerty and 
 
 maintenance. 
 
 280. Bigamy or polygamy. 
 
 281. Bribery. 
 
 282. Burglary. 
 
 283. Robbery. 
 
 284. Embezzlement. 
 
 Sec. 
 
 285. Larceny. 
 
 286. C h e a t i n g — False pre- 
 
 tenses. 
 
 287. Conspiracy. 
 
 288. The agreement. 
 
 289. Dueling. 
 
 290. Extortion. 
 
 291. Forgery. 
 
 292. Homicide. 
 
 293. Voluntary manslaughter. 
 
 294. Involuntary manslaughter. 
 
 295. Justifiable homicide. 
 
 296. Malice. 
 
 297. Libel. 
 
 298. Malicious trespass or 
 
 malicious mischief. 
 
 299. Mayhem. 
 
 300. Nuisance. 
 
 301. Perjury. 
 
 302. Piracy. 
 
 303. Riot. 
 
 304. Treason and misprision of 
 
 treason. 
 
 § 263. Criminal offenses in general. — Every state 
 in the Union has its own way of defining crimes and 
 declaring what punishment shall be inflicted upon 
 offenders. We shall not undertake to give a compilation 
 of the various statutory enactments, but shall content our- 
 selves by giving in brief the essential ingredients of such 
 crimes as are recognized and punished in most of the 
 states. 
 
 169
 
 170 ELEMENTARY LAW [§ 264 
 
 § 264. Abortion. — Abortion consists of causing the 
 miscarriage or premature delivery of a woman. The 
 statutes of some of the states require that the child shall 
 have quickened in the womb at the time of the commis- 
 sion of the crime. The laws of other states declare 
 that the offense may be complete at any time after 
 gestation has begun. The consent of the mother is no 
 defense. 
 
 § 265. Adultery. — Adultery is voluntary sexual in- 
 tercourse with another man's wife. The woman must be 
 married; she must be another man's wife, and whoever, 
 married or single, has illicit intercourse with her becomes 
 guilty of adultery. Such are the essentials of adultery 
 at common law. In some states the offender who is 
 married is alone held guilty; in other states, where the 
 intercourse is between a married woman and a single 
 man, the woman alone is guilty. 
 
 § 266. Fornication. — Fornication is voluntary il- 
 licit sexual intercourse under circumstances not constitut- 
 ing adultery. Single acts of fornication have been made 
 criminal in some states, while in others it is punished only 
 when it is habitual and notorious. 
 
 § 267. Incest. — Incest is sexual intercourse by per- 
 sons who are related to each other in degrees within 
 which marriage is prohibited by law. It is a crime un- 
 known to the common law, and the statutes of the differ- 
 ent states must be consulted to ascertain what constitutes 
 the offense in any given locality. 
 
 § 268. Rape. — Rape is the having carnal knowl- 
 edge of a woman forcibly and against her will. Sexual 
 intercourse with a child under the age of consent fixed by
 
 § 270] CRIMINAI, OFFENSES 171 
 
 law, with an insane woman, or a woman in a condition 
 in which she can not consciously consent, or when con- 
 sent is extorted by fear, is rape, though no actual force 
 be used. The crime is not complete unless there is some 
 penetration by the male organ. It is no defense to a 
 charge of rape that the injured woman is a prostitute, 
 though her evidence would be regarded with suspicion. 
 It may be said of the crime, generally, that it is a charge 
 easily made and hard to disprove. If the woman be of 
 good repute and make seasonable outcry, and show signs 
 of injury, and the place where the crime was perpetrated 
 be remote from observation, and if the offender flee to 
 avoid arrest, her testimony is of great weight. A male 
 under the age of fourteen is, in many states, conclusively 
 presumed to be incapable of committing the offense; in 
 other jurisdictions his ability to commit the crime is mat- 
 ter for proof. t 
 
 § 269. Seduction. — Seduction is the enticing by a 
 man of an unmarried woman of previous chaste char- 
 acter, by means of persuasions and promises, to have 
 sexual intercourse with him. Some statutes require the 
 promise to be a promise of marriage. Others make it 
 a crime to debauch and seduce an unmarried female of 
 previous chaste character without regard to the means 
 employed. Where the consent is given merely from 
 carnal lust and the intercourse is from mutual desire, 
 there is no seduction. If the woman knew the man to 
 be married she will not be heard to say that she con- 
 sented to the intercourse because of a promise of mar- 
 riage. 
 
 § 270. Abduction and kidnaping. — Abduction, 
 though not a common-law crime, is made a crime by the 
 statutes of most of the states. It is the act of taking
 
 172 ELEMENTARY LAW [§ 271 
 
 away or detaining a woman against her will, or, in the 
 case of minors, against the will of their parents or other 
 person having lawful charge of them. In a more 
 restricted sense it is the unlawful seizure or detention of 
 a female for the purpose of marriage, concubinage or 
 prostitution. Kidnapping is the unlawful seizure of any 
 person with the intent to remove him to another place. 
 It is a false imprisonment aggravated by the intent to 
 carry the person imprisoned to another place. By the 
 common law kidnapping was the forcible abduction or 
 stealing away of a man, woman or child from their own 
 country and sending them into another. 
 
 § 271. Bestiality — Sodomy. — The first is the cop- 
 ulation of man or woman with a beast, the second the 
 unnatural copulation of man with man or man with 
 woman. Both parties are guflty of sodomy and the con- 
 sent of the parties is no defense. These crimes are gen- 
 erally spoken of as the abominable and detestable crimes 
 against nature, and as crimes not to be named among 
 Christians. 
 
 § 272. Affray. — An affray is the fighting together 
 of two or more persons, either by mutual consent or 
 otherwise, in some public place, to the terror of the 
 people. There must be some stroke given or offered; 
 mere quarreling and the use of threatening words are 
 not sufficient. If the fighting is in private it is not an 
 affray. Prize fighting as it is now practiced is not an 
 affray, but it is made a misdemeanor by the laws of 
 most of the states of the Union. In some states the 
 fighting must be by mutual agreement to constitute an 
 affray; elsewhere it is held that the mere fighting in a 
 public place, with or without mutual consent, constitutes 
 the offense.
 
 § 275] CRIMINAI, OFFENSES 173 
 
 § 273. Arson. — Arson, as defined by Coke, is the 
 malicious and voluntary burning of the house of another 
 by night or by day. There must be an actual burning of 
 some part of the building, though it is not necessary that 
 any part should be wholly consumed. The burning is 
 sufficient to constitute the offense when any part of the 
 building is charred, but a mere scorching or discolora- 
 tion is not enough. Formerly the crime of arson was 
 limited to the burning of dwelling-houses, but it now 
 has a wider scope, under the legislation of the various 
 states, so that stables, mills, churches, warehouses, school- 
 houses and other structures may be the subjects of arson. 
 The burning must be malicious and wilful, and not merely 
 negligent. The intent to injure is an essential ingredient 
 of the crime, but this intent will be generally presumed. 
 
 § 274. Assault. — A simple assault as defined by 
 Bishop is an unlawful physical force partly or fully put 
 in motion, creating a reasonable apprehension of immedi- 
 ate physical injury to a human being. It is essential that 
 the force intended to be applied should be put in motion. 
 Mere preparation or threats are not an assault. There 
 must be some act which if not stopped may apparently, 
 or, as some courts hold, actually, produce injury. Strik- 
 ing at another within striking distance though the blow 
 comes short, throwing a missile at another, aiming a gun 
 within gunshot, pointing a pitch-fork at a person within 
 reach — such act coupled with a present intention to do 
 violence would be an assault. 
 
 § 275. Assault and battery. — A battery is the un- 
 lawful touching of another in a rude, insolent or angry 
 manner. To spit upon one, to set a dog upon him which 
 touches or bites him, to touch or lay hold of the clothes 
 of another, is sufficient. There must be intentional
 
 174 ElvEMENTARY LAW [§ 276 
 
 physical contact. If this is lacking it can amount to 
 no more than a simple assault. 
 
 § 276. Assault with intent. — An assault with in- 
 tent is where an intent to commit a specific crime accom- 
 panies the assault, as an assault with intent to kill, to rob, 
 to rape or to inflict some serious bodily injury. In order 
 to convict in such cases the specific intent charged against 
 the accused must be proved, and this intent may be in- 
 ferred from his acts, words and the circumstances sur- 
 rounding the transaction. The apparent consent of per- 
 sons who are legally incapable of giving consent is no 
 defense to a charge of assault with intent. In case 
 of assault with intent to commit a crime, there must 
 be, according to the rule established in some courts, a 
 present ability in the assailant to inflict the injury, but 
 the better opinion is that it is sufficient, if there is a 
 reasonably apparent present ability, so as to create an 
 apprehension that the injury may be inflicted, and cause 
 the person threatened to resort to measures of self- 
 defense. 
 
 § 277. Justification for assault. — No one can be 
 held to be guilty of an unlawful assault who has a suf- 
 ficient justification or excuse for his act, as where it is 
 in the necessary defense of his person, his property, or 
 the persons to whom he owes the duty of protection, as 
 wife, child or servant. As we have seen, a person who 
 shoots at one, believing him to be another person whom 
 he intends to kill, is guilty of shooting with intent to 
 kill, and shooting or throwing a missile into a crowd is 
 an assault with intent to kill or injure any one who may 
 be in reach of the gun or the missile thrown. 
 
 fc>' 
 
 § 278. False imprisonment. — False imprisonment
 
 § 279] CRIMINAL OFFENSES 175 
 
 is the unlawful restraint of a person contrary to his will, 
 either with or without process of law. There must be 
 a forcible detention of the person, and the detention must 
 be unlawful. An officer who arrests and holds one in 
 obedience to a writ directed to him from a court of 
 competent jurisdiction is not guilty of the ofifense unless 
 there was something on the face of the writ itself show- 
 ing that it was not properly issued. 
 
 § 279. Barratry, champerty and maintenance. — 
 
 These offenses were all punishable at common law. 
 Barratry is the offense of frequently stirring up quarrels 
 and suits, either at law or otherwise. The indictment 
 should charge the offender with being a common barrator, 
 and there must be proof of at least three instances of 
 ott'ending. Champerty is a bargain with a party to a 
 suit for a portion of the land or other matters sued for, 
 in case of a successful termination of the suit which the 
 champertor undertakes to carry on at his own expense. 
 Contracts by attorneys for purely contingent fees, to be 
 paid out of the damages recovered, were formerly con- 
 sidered champertous and void, but they are looked upon 
 with more indulgence now and the practice of making 
 such contracts is common, though it must be admitted 
 that they have a pernicious influence on the character and 
 standing of attorneys who make them. Where such con- 
 tracts exist the attorney becomes, in effect, one of the 
 real parties to the action. In some states it is held that 
 the purchase and sale of land in litigation, or in the 
 adverse possession of another, is a champertous contract 
 and will not be enforced. Maintenance is a malicious, 
 or at least officious, interference in a suit in which the 
 offender has no interest, to assist one of the parties to it 
 against the other with money or advice to prosecute or 
 defend the action, or, as it is otherwise defined, it is
 
 176 ELEMENTARY LAW [§ 280 
 
 the intermeddling of a stranger in a suit for the purpose 
 of stirring up strife and continuing the htigation. 
 
 § 280. Bigamy or polygamy. — One already mar- 
 ried and liaving husband or wife living, who marries a 
 second time, is guilty of bigamy. These are statutory and 
 not common-law crimes. If the first marriage has been 
 annulled by a court of competent jurisdiction, the parties 
 are free to contract a second marriage, and a person 
 whose husband or wife has been absent for a certain 
 number of years without being known by such person 
 to be living may innocently contract a second marriage. 
 Where there has been no valid divorce from the first 
 husband or wife and a second marriage is contracted on 
 the advice of counsel and in the honest belief that the 
 divorce is valid, it is generally no defense, though it has 
 been held that where the belief was on reasonable grounds 
 after due inquiry, it is a defense to a criminal prosecu- 
 tion. 
 
 § 281. Bribery. — Bribery at common law was lim- 
 ited to the giving to a judge or other officer connected 
 with the administration of justice any undue reward to 
 influence his behavior in office. A better definition is 
 the giving or receiving of a reward to influence any 
 official act, whether of a judicial officer or not. The 
 statutes of the states have extended the scope of the 
 crime until it now includes judges, jurors, election 
 officers, voters, legislators and all public officials who are 
 placed in responsible stations to perform public service. 
 
 § 282. Burglary. — Burglary at common law is the 
 breaking and entering of the dwelling-house of another 
 in the night-time with the intent to commit a felony 
 therein. There must be some breaking, and if the entry
 
 § 283] CRIMINAI, OFFENSES 177 
 
 is made through an open door or window the offense is 
 not complete. The raising of a closed window or the 
 turning of the knob or lifting the latch of a closed door 
 is sufficient. So if there is an entry through an open 
 door, but a breaking of an inner door, it is sufficient. 
 There must be a breaking of some part of the house; 
 forcing the door of an area wall or breaking open a 
 chest or trunk in the house will not constitute a breaking. 
 If one with intent to commit a felony knocks at a door, 
 and an inmate opens it and he thus gets in, it is a con- 
 structive unlawful breaking. So where one gains admit- 
 tance upon a false pretense of having business with an 
 inmate, or by collusion with the servants of the house- 
 hold. An entry is essential, but the slightest entry is suf- 
 ficient. If any part of the body or a weapon, a stick or 
 anything in the offender's hands is thrust into the house 
 through a door or window which has been broken, it will 
 constitute an entry. The entry need not be at the same 
 time as the breaking, but both must be in the night. Night 
 for the purposes of this crime begins when daylight ends 
 and when countenances can not be easily discerned, and 
 ends when there is sufficient daylight to discern them. 
 The building broken into must by the common law be a 
 dwelling. The statutes of many states have included 
 stores and many structures not used as dwellings. In 
 some states a breaking and entering in the daytime with 
 intent to commit a crime is declared to be burglary. The 
 intent to commit a crime must exist. Ordinarily the 
 intent of the burglar is to steal, but it may be to commit 
 any other crime. Whatever the intent is it must exist at 
 the time of the breaking and entering. 
 
 § 283. Robbery. — Robbery is the taking with fe- 
 lonious intent of any money or goods of any value 
 belonging to another from the person of another, or in 
 12 — Elem. Law.
 
 178 ELEMENTARY LAW [§ 284 
 
 his presence against his will by force or violence or by 
 putting him in fear. The robber must take and remove 
 the property taken, the thing taken must be the subject 
 of larceny, the force used must be before or at the time 
 of the taking and of such character as to make it evident 
 that it was intended to overpower the party robbed or to pre- 
 vent resistance on his part and not merely to get possession 
 of the property. The mere taking the property from another 
 by the false pretense that the taker is an officer, or the 
 quiet and unobserved picking a pocket, or the snatching 
 of an article from another's hands when there is no 
 struggle or resistance, is not robbery. The fear must 
 be such as would intimidate and create a reasonable ap- 
 prehension of danger. The person robbed need not be 
 the owner of the property, possession is enough. If the 
 accused acted in good faith, under the impression that 
 the property was his own, there is no robbery. 
 
 § 284. Embezzlement. — Embezzlement is not a 
 common-law offense, but is made a crime by state stat- 
 utes. It is like larceny in its effects upon the owner, 
 and in the intent of the offender, but it differs in the 
 important particular that the offender comes lawfully 
 into possession of the money or thing embezzled, the 
 criminal act being the fraudulent and unlawful appro- 
 priation of it to his own use. Bailees, cashiers or tellers 
 of banks, clerks, public officers, agents and officers of cor- 
 porations, bookkeepers, in short, all persons entrusted 
 with the care of money or property belonging to others, 
 who unlawfully and with fraudulent intent convert it 
 to their own use, are embezzlers. If it appears that the 
 money or thing taken was in the actual or constructive 
 possession of the owner, the offense would be larceny and 
 not embezzlement.
 
 § 286] CRIMINAI, OFFENSES 179 
 
 § 285. Larceny. — Larceny is the unlawful taking 
 and carrying away of the personal property of another 
 with the intent to deprive the owner thereof. Grand 
 larceny and petit larceny are distinguished arbitrarily by 
 the value of the property taken, as declared by the stat- 
 utes of the various states. What is grand larceny in one 
 state may be only petit larceny in another. 
 
 The taking must be secret and fraudulent, and it is 
 not necessary that it should be by the thief in person. 
 If the thief with felonious intent induces an innocent per- 
 son to take the personal property of another and deliver 
 it to him it is an unlawful taking. The slightest inten- 
 tional removal of the article from the place where it was 
 before is a carrying away. 
 
 It is not necessary that the person from whom the 
 property is taken should be its absolute owner. Any 
 rightful possession, as that of a bailee having a qualified 
 right of property, would be ownership sufficient to sup- 
 port a charge of larceny. Goods in the possession of 
 an agent or servant of another are constructively in the 
 possession of the owner or master, provided the servant's 
 custody was obtained from the master, though he may be 
 personally ignorant of their existence or whereabouts. If 
 possession is obtained lawfully the subsequent carrying 
 away with the unlawful intent will not make it larceny. 
 The unlawful intent to carry away and convert the prop- 
 erty must exist at the time of taking. If by a fraud- 
 ulent trick the owner is induced to part with the posses- 
 sion of his property temporarily, the thief intending to 
 appropriate it unlawfully, it is larceny, 
 
 § 286. Cheating — False pretenses. — Cheating by 
 false pretenses is where any person by a false and fraud- 
 ulent representation or statement of an existing or past 
 fact, made with a knowledge of its falsity and with
 
 180 ELEMENTARY EAW [§ 287 
 
 intent to deceive and defraud, induces another to part 
 with money or property of vakie. It is not larceny 
 because that implies that the owner's goods were taken 
 from him without his consent. No mere expressions of 
 opinion nor promise for future conduct, however fraud- 
 ulent and false, will amount to a false pretense. The 
 fraudulent representation must be of such a character as 
 would mislead a person of ordinary intelligence. The 
 injured party must be deceived, the representations must 
 be false and must be believed to be true by the party 
 defrauded. The offender must fraudulently intend to 
 obtain the property and to deprive the owner of the use of 
 it, and the offense is not complete until the owner has 
 parted with his property. It is no defense to show that 
 other motives influenced the owner in part. It is suffi- 
 cient if the fraudulent and false pretense charged were 
 a part of the moving cause without which the owner 
 would not have parted with his property. 
 
 § 287. Conspiracy. — A conspiracy is a combina- 
 tion of two or more persons, by some concerted action, 
 to accomplish some criminal or unlawful purpose, or to 
 accomplish some purpose not in itself criminal or unlaw- 
 ful, by criminal or unlawful means. In many states 
 conspiracy is indictable as a common-law offense, in 
 others there is no common-law jurisdiction of the offense. 
 
 § 288. The agreement. — The agreement, which is 
 an essential ingredient of the crime, may be express or 
 implied, and its existence may be proved by circumstantial 
 evidence. Any one who enters a conspiracy adopts all 
 the previous acts of his coconspirators in forming and 
 carrying out the criminal purpose, and is bound by all 
 that is done by them afterwards unless he withdraws and 
 renounces his connection with it. If the conspiracy is to
 
 § 291] CRIMINAL, OFFENSES 181 
 
 commit a felony, the conspiracy is merged in the consum- 
 mated act. The mere unlawful agreement constitutes the 
 crime, whether the unlawful purpose is accomplished or 
 not. All parties to a conspiracy are liable, in a civil 
 suit for damages, to the injured person. 
 
 § 289. Dueling. — Dueling is made a crime by the 
 statutes of all the states. If death ensues all the parties, 
 principals and seconds are guilty of murder. The sending 
 or carrying of a challenge to fight a duel is an indictable 
 offense in most of the states. 
 
 § 290. Extortion. — Extortion signifies in an en- 
 larged sense any oppression under color of right, but in 
 a stricter and more accurate sense it is the demanding 
 and receiving of money by an officer by color of his 
 office, either where none is due or where the sum de- 
 manded and received is in excess of the amount due. It 
 is an offense which can be committed only by officers, 
 whether federal or state, ministerial or judicial. One who 
 acts as an officer can not plead in defense to a charge of 
 extortion that he did not hold the office rightfully. The 
 most common form of the offense is the demanding and 
 receiving fees for official services in excess of the 
 amounts fixed by law. 
 
 § 291. Forgery. — Forgery at common law is the 
 falsely making or materially altering, with intent to 
 defraud, any instrument in writing which if genuine would 
 impose a legal liability. The false making must be with 
 the intent that it shall appear to be the act of another, 
 and with the intent to defraud. One who honestly be- 
 lieves that he has the authority to sign the name of 
 another, or to make a material alteration in a written 
 instrument, is not guilty of forgery though no such
 
 182 ELEMENTARY LAW [§ 292 
 
 authority existed in fact. While the intent to defraud is 
 necessary, it is not essential that the party intended to 
 be defrauded should be injured thereby. It is no defense 
 for the forger to say that his work was done so blunder- 
 ingly that it would deceive only stupid and careless per- 
 sons. An alteration of an instrument which though 
 intended to do so does not in fact and law alter the 
 rights or obligations of the parties to it is not a forgery, 
 though the party making it did so with a fraudulent 
 intent. The uttering of the forged instrument is com- 
 plete when the forger by words or actions declares that 
 the forged instrument is genuine with a knowledge that 
 it is false. By the statutes of most states the possession 
 of forged or counterfeit bank notes with intent to utter 
 or pass them is punishable as forgery. 
 
 § 292. Homicide. — Homicide is the killing of a 
 human being, and it may be a lawful and an innocent 
 act or a criminal act. Where it is a criminal it is 
 designated as murder or manslaughter. In most of the 
 states there are grades of murder, as murder in the 
 first degree, murder in the second degree. 
 
 The highest grade of murder, that is, murder in the 
 first degree, is the unlawful and felonious killing of 
 another human being with malice aforethought and with 
 deliberate premeditation. Murder in the second degree 
 is like murder in the first degree, except that it lacks the 
 premeditated design which is essential to the first, it being 
 the intentional unlawful killing with malice, but without 
 premeditation. 
 
 §293. Voluntary manslaughter. — Manslaughter is 
 the unlawful killing of another human being without 
 malice, and is either voluntary or involuntary. Voluntary 
 manslaughter is where the act causing death is com-
 
 § 295] CRIMINAL OFFENSES 183 . 
 
 mitted in the heat of sudden passion caused by provoca- 
 tion. There must be a purpose to kill or to inllict serious 
 bodily harm. It is not necessary that the passion should 
 be such as to dethrone the reason, but it must be suf- 
 ficient in degree to negative the idea of malice in the 
 slayer. Whether in the particular case the provocation 
 v^as adequate, or the passion excited sufficient to rebut 
 the idea of malice, is for the jury to determine. The 
 provocation may consist of abusive language, or an un- 
 lawful assault. And where two engage in a combat with 
 or without weapons and one is killed, it is voluntary man- 
 slaughter, unless the combat was sought by one merely 
 as a pretext for killing the other. 
 
 § 294. Involuntary manslaughter. — Involuntary 
 manslaughter is the unlawful killing of a human being 
 without malice, and without intent to kill or to inflict the 
 injury causing death, committed accidentally in doing an 
 unlawful but not felonious act, or in the improper or 
 negligent doing of a lawful act. The following are 
 instances of involuntary manslaughter when death results: 
 
 The reckless handling and discharge of firearms, gross 
 carelessness on the part of a locomotive engineer or the 
 master of a vessel, the grossly negligent use of defective 
 material in building a house, reckless riding of a horse 
 or driving a vehicle, cruel and immoderate punishment of 
 a child or pupil. 
 
 § 295. Justifiable homicide. — Homicide is justifi- 
 able where life is taken by the proper officer in pursuance 
 of the lawful sentence of a court adjudging the execution 
 of a convict; where the killing is in the necessary self- 
 defense of the person of the slayer, or of a husband or 
 wife, parent or child, master or servant, or a man's 
 habitation; where it is necessary for the preservation of
 
 184 Eleme;ntary law [§ 296 
 
 the peace, or to arrest or prevent the escape of a felon, 
 or to prevent the commission of a felony. So also is the 
 slaying of enemies in time of war, or the execution of 
 persons guilty of certain breaches of the rules of military 
 law. In the case of an overloaded boat, where the sailors 
 threw some passengers overboard to lighten the vessel, the 
 court held that they were guilty of manslaughter, and 
 that in such an extremity the victims should have been 
 selected by lot. 
 
 To justify homicide on the ground of self-defense 
 the accused must show that he was in apparent danger 
 of losing his own life, or of suffering grievous bodily 
 harm at the hands of his assailant. It may turn out 
 that the danger was not real, but if the conduct of the 
 assailant was such as to create in the mind of the person 
 assaulted a reasonable' apprehension of danger at the time, 
 it is sufficient. The same rule applies where the plea is 
 urged by one who takes life in the defense of those to whom 
 he owes the duty of protection. 
 
 § 296. Malice. — Malice and the intent to kill are 
 essential ingredients of murder, but this malice does not 
 necessarily involve the notion of ill will toward the per- 
 son slain. Where by one's conduct one is shown to be 
 depraved in mind, devoid of social duty and fatally bent 
 on mischief, malice is sufficiently proved. Proof of a 
 formed purpose to take the life of the victim is sufficient 
 to establish the existence of what is called malice afore- 
 thought, and it is enough if the intent to kill exists at 
 the moment of killing, if it is deliberate. The jury may 
 infer malice from the act and manner of killing where 
 it is unlawful, and it is for them to determine from all 
 the circumstances whether malice in fact existed. 
 
 § 297. Libel. — Libel is made criminal by the laws
 
 § 300] CRIMINAL OFFENSES 185 
 
 of some states, and it may be defined to be the wilful and 
 malicious publication of any false and scandalous mat- 
 ter tending to injure the reputation of another, or to hold 
 him up to public ridicule and contempt. In most states 
 the injured person is left to his remedy at law by means 
 of a civil action for damages. 
 
 § 298. Malicious trespass or malicious mischief. — 
 
 The offense is ordinarily limited to injuries to property, 
 as the maiming of cattle or other beasts, girdling trees, 
 disfiguring houses. Malice is an essential ingredient of 
 the offense; but where the injury is wilful, malice will be 
 presumed. It is essential that damage shall have resulted 
 to the property. 
 
 § 299. Mayhem. — Mayhem at common law was 
 the act of unlawfully and violently depriving another of 
 the use of some member of his body whereby he was 
 rendered less able to fight. A mere disfiguring, such as 
 cutting off an ear or a nose, was not mayhem at com- 
 mon -law. By statutes in England and America, the 
 definition has been extended so as to include all malicious 
 injuries which disable or disfigure the injured person. It 
 must be intentional, and an injury resulting from a ran- 
 dom blow or thrust during a fight will not constitute 
 mayhem, although it may result in maiming or disfigur- 
 ing the injured party. There must be the specific intent 
 to do the act which results in the crippling or disfiguring. 
 
 § 300. Nuisance. — Nuisance is a common-law of- 
 fense and consists in the unlawful doing of an act, or 
 permitting a condition of things to exist which is 
 prejudicial to the health, comfort, safety, property, sense 
 of decency or morals of the citizens at large, and it may 
 be an act unauthorized by law, or from neglect of a
 
 186 ELEMENTARY LAW [§ 301 
 
 duty imposed by law. To carry on an offensive trade 
 in a populous community; to keep a pig sty in a city; 
 to allow a stable in a city to become filthy; to disturb 
 the public rest by useless and unlawful noise; to pollute 
 streams or lakes which supply drinking water to the pub- 
 lic ; to keep a disorderly house, and other such acts, 
 constitute the offense. 
 
 § 301. Perjury. — The crime of perjury as described 
 in the common law is committed where a lawful oath 
 is administered in some judicial proceedings or due 
 course of justice to a person who swears wilfully and 
 absolutely and falsely in a matter material to the issue 
 or point in question. By various statutes the offense is 
 extended to false swearing in matters not connected with 
 judicial proceedings. The crime may be committed by a 
 witness on oral examination, in the course of a trial, or 
 by a deposition taken before an officer duly authorized to 
 take it, or by an oath to an affidavit to be used at any 
 stage of the judicial proceedings to which it relates. The 
 form of an oath is immaterial, if it be administered 
 in such a way as to bind the conscience of him who takes 
 it and to accord with his religious belief. 
 
 An affirmation taken by one who has conscientious 
 scruples as to the taking of an oath is the same as an 
 oath, and one who falsely affirms is as much a perjurer 
 as if he falsely swears. The false statement must be of 
 a matter material to the sul)jcct under consideration. A 
 guilty intent is necessary to perjury, Init a reckless state- 
 ment under oath of the existence of a fact of which the 
 person taking the oath had no knowledge has been said 
 to be perjury, although tlie statement sworn to may be 
 true. 
 
 § 302. Piracy. — Piracy is robljery on the high
 
 § 304] CRIMINAL, OFFENSES 187 
 
 seas, being a forcible depredation on the high seas with- 
 out lawful authority and done in the spirit and intention 
 of universal hostility. Indictments and trials for piracy 
 are within the exclusive jurisdiction of the federal courts, 
 and it is the exclusive province of congress to say what 
 acts constitute piracy. 
 
 § 303. Riot. — Riot is a tumultuous disturbance of 
 the peace by three or more persons assembling together on 
 their own authority with an intent, mutually, to assist one 
 another against any one who shall oppose them, in the 
 execution of some enterprise of a private nature, and 
 afterwards actually executing the same in a violent and 
 turbulent manner, to the terror of the people, whether the 
 act accomplished was of itself lawful or unlawful. The 
 act is not criminal because it is unlawful, but on account 
 of the violent and turbulent manner of doing it. There 
 must be three or more guilty parties, and if three only 
 are charged and two are acquitted, the third can not 
 be held guilty. An agreement to participate in the 
 enterprise may be implied from the circumstances and 
 conduct of the parties. 
 
 § 304. Treason and misprision of treason. — Trea- 
 son against the United States exists where a person 
 owing allegiance levies war against them, or adheres to 
 their enemies, giving them aid and comfort. The differ- 
 ent states define treason in substantially the same way. 
 Under the federal constitution no person can be con- 
 victed of treason unless on the testimony of two wit- 
 nesses to the same overt act, or on confession in open 
 court. If a body of men be actually assembled for the 
 purpose of effecting by force a treasonable design, all 
 those who perform any part, however minute or how- 
 ever remote from the scene of action, and who are
 
 188 ELEMENTARY LAW [§ 304 
 
 actually leagued in the general conspiracy, are to be con- 
 sidered traitors. 
 
 It is the duty of a citizen who has knowledge of the 
 commission of treason against the United States to dis- 
 close the same to the president or a judge of the United 
 States, or to the governor or some judge or justice of 
 a state, and the failure to make such disclosure is mis- 
 prision of treason.
 
 PART I 
 
 THE LAW OF PROPERTY 
 
 CHAPTER XXII 
 PROPERTY IN GENERAL 
 
 Sec. Sec. 
 
 305. The law of property. 308. Its importance. 
 
 306. Basis of ownership. 309. Kinds of property. 
 
 307. Origin of private owner- 
 
 ship. 
 
 305. The law of property. — The law of property 
 is that branch of the civil law which is concerned with 
 ownership and other interests in property. For the pur- 
 pose of furnishing an adequate basis of adjusting the 
 inevitable conflicts over property rights and providing a 
 definite, uniform system for such effective dealings in 
 property interests as modern commercial life requires, the 
 state has formulated an elaborate and technical set of 
 legal rules. There is, perhaps, no field of law where 
 more emphasis is placed upon technical formalities. The 
 law frequently prescribes detailed, formal requisites for 
 certain instruments. One of the reasons for this is found 
 in the fact that certain rights of property, as titles to 
 land, for instance, are established by proving an un- 
 broken chain of title. For purposes of convenience, this 
 requires that where possible all transactions affecting land 
 titles should be evidenced in a certain, definite and author- 
 ized manner. This furthermore explains why much of 
 our law on this subject is so strongly influenced by 
 
 189
 
 190 ELEMENTARY LAW [§ 306 
 
 historical considerations. In England, whence came our 
 common law, titles are traced back several centuries to 
 the feudal system, and necessarily this is reflected in the 
 body of our law. 
 
 No greater source of useless litigation and domestic 
 irritation could be found than a legal system where prop- 
 erty rights were indefinite and uncertain. To guard 
 against this evil and at the same time facilitate the ease 
 and freedom of property transactions is one of the main 
 purposes of this branch of the law. 
 
 § 305. Basis of ownership. — In speaking of the 
 Roman laws the German jurist Savigny sa3^s that "all 
 property is founded on adverse possession ripened by 
 prescription." Sir Henry Maine gives it as his opinion 
 that the "true basis of the right of property is not an 
 instinctive bias towards the institution of property, but a 
 presumption arising out of the long continuance of that 
 institution that everything ought to have an owner. 
 Where possession is taken of an object which is not or 
 has never been reduced to dominion, the possessor is 
 permitted to become proprietor from a feeling that all 
 valuable things are naturally the subjects of exclusive 
 enjoyment, and that in tlie given case there is no one to 
 invest with the right of property except the occupant. 
 The occupant, in short, becomes the owner, because all 
 things are persumed to be somebody's property and 
 because no one can be pointed out as having a better 
 right than he to the proprietorship of this particular 
 thing." The individual right of property, as appears 
 from a closer study of ancient law, seems to be a com- 
 paratively modern conception. Ancient law knows next 
 to nothing of individuals; it is concerned not with indi- 
 viduals, but with families ; not with single human beings,
 
 § 308] PROPERTY IN GENERAL 191 
 
 but groups. It is more likely that joint ownership and 
 not separate ownership prevailed in primitive societies. 
 
 § 307. Origin of private ownership. — Out of this 
 community ownership, in which the rights of all the 
 individuals were blended, there grew the idea of private 
 property. So long as the family or tribe or community 
 held property in common the right of individual or 
 private ownership was practically ignored, if, indeed, it 
 existed at all. This right grew and strengthened as the 
 family, tribe or community disintegrated under the 
 ameliorating influences of advancing civilization, and as 
 the individual escaped from the tyranny of the head of 
 the family or the chief of the tribe. 
 
 § 308. Its importance. — The power or assertion of 
 exclusive ownership is manifested by boundaries, fences, 
 walls encircling land, and the actual possession and con- 
 trol of personal property. This dominion of the individ- 
 ual over his property is permitted and defended by the 
 state as a pure matter of convention and policy. In a 
 savage state it is not essential, except as to things of 
 little value, but in a civilized society it is the basis of 
 property, and without it progress would seem to be im- 
 possible. Land being indestructible in character, limited 
 in extent and incapable of increase, can not be regarded 
 as a true subject of permanent individual appropriation. 
 And however important it is that the tenure of the culti- 
 vation of the soil should be secure, the paramount 
 dominion of the state over every part of its territory is 
 a fact which in a high condition of social progress can 
 not be emphasized too strongly or made to be felt too 
 universally and really. By enactments prohibiting the 
 entailment of estates in land by abolishing primogeniture, 
 by succession taxes, and other devices in case of need.
 
 192 ELEMENTARY LAW [§ 309 
 
 the states of the Union have it in their power to prevent 
 the hurtful monopohzation of land. 
 
 To protect this right of property, whatever may be 
 its origin or extent, the law has provided numerous 
 methods to prevent the invasion of the right, and to 
 redress wrongs by which it is violated. The laws for 
 redressing injuries to the rights to life and personal 
 security are comparatively few — the laws for the pro- 
 tection of the right of property are, as we shall see, 
 numerous. 
 
 § 309. Kinds of property. — There are two kinds 
 of property which are the subject of individual owner- 
 ship — real and personal, and these are subdivided into 
 corporeal and incorporeal. There can be no individual 
 or exclusive ownership of any object which can not be 
 exclusively possessed or enjoyed; so that the elements of 
 light, air and water, which a man may occupy and use by 
 means of his windows, his gardens, his walls and other 
 conveniences are his so long as they remain in his 
 possession, but if he ceases to possess them or voluntarily 
 abandons them, they return to the common stock, and 
 the next taker has an equal right to seize and enjoy them. 
 This principle applies to animals fer?e naturae, surface and 
 subterranean streams of water, and veins or reservoirs 
 of oil or gas beneath the soil. The doctrine of ancient 
 rights which once prevailed in England, that is, the right 
 that the first builder upon ground had to prevent the 
 owner of the adjoining ground from erecting a structure 
 that would shut out the light or air from the first 
 builder's house has been abandoned in this country. The 
 owner of the soil has the right, in the absence of boundary 
 agreements to the contrary, to dig as deep and to build as 
 high as he sees fit, so long as he conforms to the lines of
 
 § 309] PROPERTY IN ge;ne;raIv 193 
 
 his own boundaries, and does not undermine or injure 
 the land or buildings of his neighbor. 
 
 Real property consists of land and structures perma- 
 nently affixed to land. 
 
 Personal property consists of such things as are mov- 
 able and may attend the person of the owner wherever 
 he may go, as goods, money, jewels, chattels and the 
 like. 
 
 Corporeal property consists of such material things 
 as may be apprehended by the senses, as lands, goods, 
 animals, and may be the subject of actual manual posses- 
 sion and capable of being transferred by delivery. 
 
 Incorporeal property is that which consists in legal 
 right merely, as choses in action, rights of way, ease- 
 ments and the like. It is a legal right which one man 
 has, not to the property of another, but in it; as in the 
 case of a right of way, the land is owned and in posses- 
 sion of one as corporeal property, while another has the 
 single right of passing over it, which is incorporeal prop- 
 erty. Both are valuable property rights and the owners 
 of them respectively will be protected in their enjoyment 
 by the courts. Incorporeal property may be acquired by 
 agreement, or it may be created by operation of law, as 
 when one sells a parcel of land in the center of his own 
 field, the buyer by operation of law acquires a right of 
 way over the seller's other land which surrounds his. 
 
 13 — Elem. Law.
 
 CHAPTER XXIII 
 
 REAL PROPERTY 
 
 Sec. 
 
 
 Sec. 
 
 
 
 310. 
 
 Real property. 
 
 316. 
 
 Islands. 
 
 
 311. 
 
 Titles in the United 
 
 317. 
 
 Fixtures. 
 
 
 
 States. 
 
 318. 
 
 Boundaries. 
 
 
 312. 
 
 Land acquired by treaty. 
 
 319. 
 
 Land bounded 
 
 by high 
 
 313. 
 
 Indian titles. 
 
 
 ways. 
 
 
 314. 
 
 Definitions. 
 
 320. 
 
 Appurtenances. 
 
 
 315. 
 
 Lands bounded by 
 streams. 
 
 
 
 
 § 310. Real property. — The law of real property, 
 as it exists today in the United States, is full of intricacy. 
 The commercial spirit of modern times has broken down 
 many of the artificial barriers which the feudal system 
 and the English laws of descent and tenures interposed 
 to prevent the quick and easy transfer of landed estates. 
 But enough of the old rules survive to confuse and per- 
 plex the student, and to tax the experienced lawyer, when 
 he is called upon to decide concerning the rights of 
 claimants to land. It is only intended here to give in 
 outline some historical facts and general rules showing 
 how and from what source titles to land are derived, 
 and how they are transferred from one person to another. 
 
 §311. Titles in the United States.— It is a funda- 
 mental principle in the English law that the sovereign 
 was the original proprietor of all the land in the kingdom. 
 The same principle holds good in the United States as to 
 all lands which are known as public lands. By the terms 
 of their charters, the original colonies which became states 
 reserved the right when the Union was formed to hold 
 
 194
 
 § 313 J REAL PROPERTY 195 
 
 and dispose of the land within the boundaries o£ their 
 respective grants independently of the nation. Virginia, 
 by cession of parts of her territory to the United States, 
 abandoned her original claim, reserving to herself, how- 
 ever, certain portions now in the states of Kentucky and 
 Ohio, which she bestowed upon her soldiers who served 
 in the Revolutionary War. Titles to lands lying within 
 the territories acquired by purchase and annexation since 
 the formation of the Union, such as Florida, Louisiana, 
 Texas, California, New Mexico, Arizona, Colorado, are 
 held and derived from two sources. 
 
 §312. Land acquired by treaty. — In acquiring 
 these territories, so far as they were acquired by treaties 
 and annexation, the United States agreed that titles held 
 by grant from Spain, France and Mexico should be 
 respected and treated as valid. Lands not granted at the 
 date of the treaties became part of the public lands, 
 and titles to such lands are derived from the United 
 States. 
 
 § 313. Indian titles. — In the fifteenth and sixteenth 
 centuries, when navigators from Europe made their 
 discoveries upon the American continent, Spain, France, 
 Holland and England tacitly agreed that discovery and 
 occupancy gave title to tlie first comer, not only against 
 other European nations, but against the native Indians. 
 The absolute title of the Indians "yielded to the military, 
 intellectual and moral power of the European immi- 
 grants." The Indians were allowed to occupy, but not to 
 dispose of the land, except to the government within 
 whose boundaries they lived. This rule grew out of the 
 necessities of the case. To have allowed the Indian 
 tribes to make transfers of land to other nations would 
 have been a mischievous source of controversy and war.
 
 196 ELEMENTARY LAW [§^14 
 
 The policy of our government has been to treat the 
 Indians as wards. Whether our duty as guardian has 
 been discharged with a due regard to the rights of 
 our wards is a matter upon which opinions differ. Little 
 by little, however, the Indian titles have been extinguished, 
 and the Indians themselves have been confined to certain 
 reservations, until now the lands they are permitted to 
 occupy are a "mere patch" when compared to the immense 
 domain which they used or possessed when the Europeans 
 discovered the continent. 
 
 §314. Definitions. — Having considered the begin- 
 ning or foundation of the titles to land in this country, 
 we come now^ to speak of the interests which individuals 
 may own in land. Things real consist of land, tenements 
 and hereditaments. The term "land" comprehends any 
 ground, soil or earth. It also includes all buildings 
 erected upon it, though cases may arise where by agree- 
 ment of parties, or by the nature of the structure and 
 the intention with which it was placed upon the land, it 
 may have and retain the character of personal property. 
 Under the term "land" is included the water which cov- 
 ers the land, so that we do not speak of so many acres of 
 water, but of so many acres of "land covered by water," 
 which was the phrase used in pleading and conveyances, 
 but now the term land will cover and include all water, 
 whether of lake or stream, within its bounds. Tenement, 
 in its original, proper and legal sense, signifies everything 
 that may be holden, provided it be of a permanent nature; 
 whether it be of a substantial and sensible or of an 
 unsubstantial, ideal kind. But an hereditament, says Sir 
 Edward Coke, is by much the largest and most com- 
 prehensive expression; for it includes not only lands and 
 tenements, but whatever may be inherited, be it corporeal 
 or incorporeal, real or personal. Hereditaments are of
 
 § 315] REAL PROPERTY 197 
 
 two kinds: corporeal, or such as affect the senses, such 
 as may be seen and handled by the body; incorporeal, 
 or those which are not the objects of sensation, can 
 neither be seen nor handled, are creatures of the mind, 
 and exist only in contemplation. 
 
 §315. Lands bounded by streams. — The grant of a 
 stream of water by that name will not pass the land over 
 which it runs, but the grant of a parcel of land passes 
 the property in the stream of water which runs over it 
 as much as it does the property in the stones at the 
 bottom of the stream. One who owns land on both 
 sides of a stream owns the whole bed of the stream. 
 When a stream bounds the lands of two, each owns to 
 the thread of the stream. The owner of land over which 
 water flows has the right to use the water without diminu- 
 tion or obstruction, except so far as the reasonable use 
 of the same by other riparian owners may affect it. 
 Strictly speaking, he has no property in the water itself, 
 but a simple use of it while it passes along. No proprie- 
 tor of land bounded by a water-course has a right to use 
 the stream to the prejudice of another proprietor. He 
 may not dam it so that it overflows the lands of those 
 above him, except ( 1 ) where he gets their permission, or 
 (2) where for certain public uses the statute authorizes 
 him to do so upon compensating the owners for the 
 injury. Ke may not foul the stream by carrying on a 
 noxious trade which poisons the water or makes it unfit 
 for use. 
 
 Where land is described as bounded by a non- 
 navigable lake, pond or stream, the general rule is that 
 the boundary is the center or thread. This rule does not 
 hold where there is anything in the grant to indicate a 
 different intention. Where land abuts on the sea or its 
 estuaries, or upon rivers in which the tide ebbs and flows
 
 198 ELEMENTARY LAW [§316 
 
 — only these being navigable at common law — the boun- 
 dary is at high-water mark. In America there is some 
 conflict as to what rule shall be apphed to fresh-water 
 lakes and the large rivers, which are navigable in fact 
 but not at common law. As to these the weight of 
 authority places the boundary at low-water mark. Where 
 a nonnavigable stream gradually changes its course, the 
 boundaries follow the change in the waters; but if the 
 change be abrupt, the ownership remains according to the 
 former bounds. 
 
 A proprietor of an island in a water-course owns to 
 the thread of each branch of the stream, which in its 
 natural course divides it from the main land. And where 
 a water-course is thus divided by an island, and the 
 smaller portion descends on one side, the proprietor by 
 whose land such smaller quantity flows is entitled to no 
 more water than naturally runs between his bank and 
 the island. 
 
 § 316. Islands. — Where islands are formed in the 
 sea or a navigable river, they belong to the sovereign; 
 in rivers not navigable and above where the tide ebbs and 
 flows, they belong to the owners of the adjoining land. 
 If there be an island exactly in the middle of the stream, 
 it is equally divided between the two proprietors. But 
 if one portion approaches nearer to one side of a stream 
 than it does to the other, the greater part belongs to the 
 owner of the nearer estate, according to its approxima- 
 tion thereto. When a river is the boundary line between 
 two nations or states, if the original property be in neither 
 and there be no agreement about it, each holds to the 
 middle of the stream. But where one state is the original 
 proprietor, and grants the territory on one side, as in the 
 cession by Virginia of the territory northwest of the 
 Ohio river, it retains the river within its domain and
 
 § 317] REAL, PROPERTY 199 
 
 the boundary of the lands ceded extends only to low- 
 water mark. 
 
 §317. Fixtures. — There is much controversy as to 
 what is a proper definition of a fixture. A fixture is 
 something annexed to land, as buildings, machinery or 
 the like. Sometimes the manner and purpose of the 
 annexation makes it a part of the realty, sometimes though 
 annexed in a permanent manner it retains its character 
 of personalty. The chattel must not only be laid upon 
 the land, it must be annexed, set into, or fastened upon 
 it, to become a part of the realty. Nor will every such 
 annexing make it part of the realty. If a tenant puts a 
 building or machinery upon land with the express agree- 
 ment with the landlord that at the end of the term it 
 may be removed, it does not become a part of the realty, 
 unless during or at the end of the term he fails to remove 
 it. But where the duration of the tenancy is uncertain, 
 the law allows the tenant a reasonable time for removal 
 of fiixtures after the end of the tenancy. The general rule 
 is that in the absence of a valid agreement to the contrary, 
 fixtures once annexed become part of the land, so that 
 conveyances, mortgages or other liens upon the land cover 
 them. When the tenant puts up trade fixtures to be 
 used in connection with his particular business, it has been 
 held to be such a declaration of intention as to prevent 
 their becoming part of the land. The old rules have been 
 relaxed, so that it may be said that as between landlord 
 and tenant, the latter may remove all such fixtures of 
 a chattel nature as he himself has erected on the premises 
 for ornament, domestic convenience, or to carry on trade, 
 provided that such removal may be made without material 
 injury to the freehold. The rule is modified sometimes 
 by the usages and customs of particular localities or 
 trades.
 
 200 e;le;me;ntary law [§ 318 
 
 As between vendor and vendee, the rule is that all 
 fixtures attached to the land by the vendor, and on the 
 land at the time of the sale, pass to the vendee, unless 
 they are expressly reserved by the terms of the contract 
 of sale. 
 
 As between heir, devisee and executor, the rule is 
 that fixtures annexed to the land by the testator go to 
 the heir or devisee, and the executor has no right to them, 
 unless the intent of the testator to have them treated as 
 personalty has been plainly expressed. In an early case in 
 Ohio the following were enumerated as the requisites of 
 a fixture : ( 1 ) That it be actually annexed to the realty, 
 or something appurtenant thereto. (2) That it be appro- 
 priate to the use or purpose of that part of the realty 
 with which it is connected. (3) That it be intended by 
 the party making the annexation to be a permanent acces- 
 sion to the freehold. What the intention was in making 
 the annexation is inferred from the following facts : the 
 nature of the article annexed ; the relation of the party 
 making the annexation, whether owner, tenant, etc. ; the 
 structure and mode of annexation; the purpose or use for 
 which the annexation has been made. 
 
 § 318. Boundaries. — Land has an indefinite extent, 
 upwards and downwards. No man has a right to erect 
 a structure, any part of which overhangs the land of 
 another. If a tree planted on one man's land extends its 
 branches over the adjoining premises, to the injury of 
 another, the owner is responsible for the damages caused 
 thereby, and the injured party may remove so much of 
 it as overhangs his premises. A grant of land carries 
 everything on it or beneath it, . whether it be woods, 
 houses, waters or metals — in a word, it carries every- 
 thing terrestrial. 
 
 Boundary lines may be fixed by agreement. They
 
 § 320] re:ai, property 201 
 
 may be established by prescription. They may be settled 
 by the conduct of the parties amounting to an estoppel. 
 In the absence of these the law fixes boundary limits as 
 a matter of policy, and in the interest of peace. A grant 
 of land bounded by a navigable river, where the tide 
 ebbs and flows, extends only to the high-water mark, but 
 it has been held that, subject to government supervision 
 and control, tlie owner of adjacent lands has the right 
 to erect wharves and piers extending to low-water mark. 
 
 § 319. Land bounded by highways. — Where a pub- 
 lic road is the boundary line, the owners of land at each 
 side own to the center of the road, and they have the 
 exclusive right to the soil, subject to the right of pas- 
 sage by the public, and may use it in any way which 
 does not impair the public right. This rule as to owner- 
 ship to the center of the road will always prevail unless 
 there is an express abandonment of the right by the 
 owners. If, under the power of eminent domain, the 
 highway is appropriated in whole or in part for any other 
 public use, the adjacent landowners are entitled to com- 
 pensation for such increased burden. 
 
 § 320. Appurtenances. — In grants of land, the 
 phrase, "and all appurtenances," is commonly used. An 
 appurtenance is a thing belonging to another thing and 
 which passes as incident to the principal thing. It is 
 inferior to the thing granted, but of the same nature. 
 Land can not be appurtenant to land, and a conveyance 
 of land bounded by the line of an adjoining highway 
 will pass no title to the soil over which the highway 
 passes, but the grant will give the grantee a perpetual 
 right of way as an appurtenance. As a general rule, 
 a grant of land carries with it as appurtenances all 
 apparent benefits and easements that are incident to it
 
 202 KLEMENTARY LAW [§ 320 
 
 and necessary to its beneficial enjoyment, and which the 
 grantor had full power to convey; and they pass, whether 
 acquired by grant or prescription, or originally incident 
 to the estate. A grant of a mill with appurtenances 
 covers the head of water by which it runs, also all 
 water-rights and privileges used with and incident to it. 
 It is not necessary to use the term, "appurtenances," to 
 convey rights that actually are such, for they pass as 
 incident to the land, whether that term is employed or 
 not.
 
 CHAPTER XXIV 
 
 INCORPOREAL PROPERTY 
 
 Sec. 
 
 
 Sec. 
 
 
 
 321. 
 
 Kinds of incorporeal prop- 
 
 327. 
 
 Temporary 
 
 rights of way. 
 
 
 erty. 
 
 328. 
 
 Easements. 
 
 
 322. 
 
 Advowsons. 
 
 329. 
 
 Offices and 
 
 dignities. 
 
 323. 
 
 Tithes. 
 
 330. 
 
 Franchises. 
 
 
 324. 
 
 The right of common. 
 
 331. 
 
 Rents. 
 
 
 325. 
 
 Right of way. 
 
 332. 
 
 Liens. 
 
 
 326. 
 
 Private rights of way. 
 
 
 
 
 §321. Kinds of incorporeal property. — Judge 
 Coaley criticises Blackstone's definition of an incorporeal 
 hereditament as "a right issuing out of a thing corporate 
 (whether real or personal) or concerning or annexed to, 
 or exercisable within the same," and defines it as "any 
 intangible right which is capable of being inherited, 
 though it may exist wholly independent of any corporeal 
 property whatsoever." 
 
 Blackstone says there are ten sorts of incorporeal 
 hereditaments : advowsons, tithes, commons, ways, offices, 
 dignities, franchises, corodies or pensions, annuities and 
 rents. 
 
 § 322. Advowsons. — Advowson is the right of pre- 
 sentation to a church, the right of the lord of a manor 
 to designate what parson shall minister to the parish and 
 enjoy the living appurtenant to it. This subject has no 
 place in American law, under which all religious societies 
 are purely voluntary, and pastors are chosen as the people 
 see fit, or as the usages of the particular ecclesiastical 
 organizations prescribe. 
 
 203
 
 204 ELEMEINTARY LAW [§ 323 
 
 § 323. Tithes. — Strictly speaking, tithes are a tenth 
 of the annual increase and profits of lands and stock 
 upon lands and the personal industry of the inhabitants. 
 In all countries where there are religions established and 
 maintained by public law, provision is made for the sup- 
 port of the clergy. It is supposed that tithes were intro- 
 duced in England in the sixth century, when Augustine, 
 the monk, planted Christianity among the Saxons. The 
 first decree enforcing the payment of tithes was made 
 A. D. 786. At first, these titlies were paid to the 
 bishops, who allotted them among the clergy of their 
 dioceses, but when the bounds of the parishes became 
 definitely fixed, the tithes were paid directly to the priests 
 of the several parishes. Sometimes, by agreement be- 
 tween the landowner and the parson, some land or other 
 recompense was given in lieu and satisfaction of tithes. 
 And sometimes by prescription certain lands or persons 
 were exempted from the payment of tithes. A modus, 
 as it is called, was a special manner of tithing, whereby 
 the general law was altered as where something in lieu 
 of the tenth part of the annual increase was paid to the 
 parson. To make a modus good, it must be certain and 
 invariable. The thing paid must be beneficial to the 
 parson. It must be different from the thing compounded 
 for. It must be as durable as the tithes discharged by it. 
 Although interesting as a historical study of the growth 
 and progress of the law, it is not deemed wise or 
 profitable to consider more fully in this place these mat- 
 ters which do not enter into the practical administration 
 of the law in this country. 
 
 § 324. The right of common. — ^This is defined to 
 be a profit which a man hath in the land of another. By 
 the English law, the lords of manors were required to 
 allow certain of the manorial lands to remain unenclosed,
 
 § 325] INCORPOREAI, PROPERTY 205 
 
 Upon which the inhabitants could pasture what were 
 called commonable beasts, which were either beasts of the 
 plow, or such as manure the ground. As lands became 
 more valuable, the lords of the manors began to enclose 
 the commons, and parliament in the reign of George III 
 enacted a law which has been repeatedly amended, regu- 
 lating the inclosure of commons. The right of common 
 in the United States is a narrow right. In tide-waters 
 the right of taking fish is common to all citizens. In 
 rivers where the tide does not ebb and flow, it is said that 
 the proprietor of the bank has an exclusive right of 
 fishery to the thread of the stream, but it has been held 
 that in large navigable rivers, such as the Susquehanna, 
 the public at large have a common right of fishery. For 
 the taking of fish where the public have the right, no 
 person can lawfully go upon the land of another without 
 license. In ordinary streams within the boundaries of 
 a man's land, or where the stream is the dividing line 
 between two proprietors, no one has a right to fish with- 
 out the license of the riparian proprietors. 
 
 Kent sums up the American doctrine thus: The 
 right of fishing in navigable or tide waters below high- 
 water mark is a common right. In streams not navigable, 
 the owners of adjacent lands have the exclusive right 
 of fishing each on his own side. Such right is held sub- 
 ject to the public use of the waters as a highway and 
 to the free passage of fish. 
 
 § 325. Right of way, — The right of way is the 
 right of going over another man's land. Ways are either 
 public or private. A public way may be established either 
 by the dedication of the owner of the land, or by the 
 appropriation of a man's land for the purpose in proceed- 
 ings at law, under the authority of the state by virtue of 
 its right of eminent domain.
 
 206 ELEMENTARY LAW [§ 325 
 
 First we shall discuss the manner in which the owner 
 may dedicate his land as a public way. Dedication is the 
 setting apart of land for public use. It is essential to 
 every valid dedication that it should conclude the owner, 
 and that as against the public it should be accepted by 
 the proper local authorities or by general public user. 
 There are two kinds of dedication, statutory dedication 
 and common-law dedication. Where the statute requires 
 that the dedication shall be evidenced in a particular way, 
 as by plats or maps, and that they shall be acknowledged 
 before some competent officer, these requirements must be 
 strictly complied with. Unless the proper local authorities 
 accept the dedication, such ways can not properly be 
 called public highways, in the sense that the expense of 
 maintenance can be cast upon the public. But where 
 lots have been purchased, according to plats or maps 
 showing certain streets and alleys upon them, these alleys 
 and streets will be kept open as ways for the benefit 
 of such persons as have made such purchases. A stat- 
 utory dedication is by way of grant, a common-law dedi- 
 cation arises by way of an estoppel in pais. No writing 
 is necessary to a common-law dedication — no formality. 
 The mere throwing open the land to the use of the public 
 for a way is a dedication if the public accepts it. It 
 must be clear, however, that the landowner intends to 
 give the right. The fact that the owner acquiesced in 
 the use of the way by the public for twenty years is 
 sufficient evidence of intent. If the public are in the 
 habit of using such a way, and the owner does not wish 
 to dedicate it, he can by unequivocal acts assert his right, 
 as by putting gates or fences across the way even once 
 in a year. It has been said that one act of obstruction 
 by the owner is better evidence of intent than years of 
 acquiescence in the use by the public. But if the use is 
 continuous and uninterrupted for twenty years the way
 
 § 327] INCORPOREAL PROPEIRTY 207 
 
 is established. Dedication may arise in a shorter period 
 than twenty years, when the intent to dedicate is positive 
 and manifest, and the question of intent is a question of 
 fact for the jury. When a dedication is once made it 
 can not be revoked. 
 
 § 326. Private rights of way. — Private rights of 
 way are of two kinds : those which are purely personal 
 and can not be assigned, and those which are appurtenant 
 or annexed to an estate and pass with a conveyance of 
 the estate. A private way may be created by a grant, 
 or it may arise by operation of law or necessity. It 
 arises by operation of law or necessity where one sells 
 a parcel of land which is surrounded wholly by the lands 
 of the grantor or by his lands and the lands of others. 
 In such case, the vendee has the right of way over the 
 lands of the vendor to the public highway. The right to 
 locate the way rests first in the vendor. If he fails to 
 locate it within a reasonable time in a convenient manner, 
 the right to locate it is in the vendee, and when once 
 located it must be adhered to. The doctrine of dedication 
 has no application to a private way, though that right 
 may be established by uninterrupted user for twenty 
 years. To make good a private way by prescription, the 
 use must be definite as to manner and location. It must be 
 under a claim adverse to the owner and not under license. 
 It must continue for the whole period, that is, twenty 
 years, without interruption. 
 
 § 327. Temporary rights of way. — There is a tem- 
 porary right of way over the adjoining land if a public 
 highway becomes impassable, as by the falling of a tree, 
 the washing away of a bridge or a part of the highway 
 itself. But this is not so of a private right of way, the 
 reason being that the owner of the way may be bound
 
 208 EI^EMENTARV LAW [§ 328 
 
 to repair, and the condition of the private way may be 
 owing to his neglect; but if a pnbhc highway becomes 
 impassable, it is for the general good that the people 
 should be entitled to pass in that direction. 
 
 § 328. Easements. — An easement is a right in the 
 owner of one parcel of land, by reason of such owner- 
 ship, to use the land of another for a special purpose not 
 inconsistent with a general property in the owner. We 
 have already spoken of rights of way, both public and 
 private, which are both easements. To these may be 
 added the right to water cattle at a spring or pond or 
 stream on the land of another, the right to take' and 
 use such water for domestic purposes, the right of the 
 owner of a building to discharge the water from his 
 roof upon another's land, the right to swing doors, shut- 
 ters, gates over another's land, the right to lay pipes to 
 conduct water, gas, sewage, the right to put a partition 
 fence or a party-wall partly on the land of an adjacent 
 proprietor. A mere permission by one landowner to 
 another to use his land for a given purpose is a license, 
 and will not be an easement. An easement by prescrip- 
 tion can only be perfected in the manner pointed out 
 as to rights of way. 
 
 A party-wall is a wall built by agreement on the 
 division lines of estates, which each proprietor has a right 
 to use as a support to buildings. Each owner of land 
 has an easement in the adjoining land for lateral support 
 of his land in its natural state. This easement does not 
 extend to any structures which increase the weight. In 
 constructing a party-wall, the builder must erect it in a 
 skillful manner, and if he does not do so he is liable 
 for any damage that may result. Either party may 
 repair the wall by underpinning, or increasing its height. 
 but he must be careful that no damage is occasioned
 
 § 330] INCOIJPOREAI, PROPERTY 209 
 
 thereby. Where one erects a wall partly on the land 
 of another, who sees it and has reason to believe that 
 the builder looks to him for contribution, the jury may, 
 from such conduct, infer that he agreed to pay for it. 
 Express agreements of the parties in relation to the build- 
 ing, use, repair and payment for party-walls are binding. 
 It is an unsettled question, however, whether such agree- 
 ments continue in favor of and against the assignees or 
 grantees of tlie parties who make them. 
 
 Easements may be lost by nonuser where an inten- 
 tion to abandon may be inferred. They are extinguished 
 where the same party becomes the owner of the domi- 
 nant and servient estates, the maxim being that no man 
 can have an easement on his own land. 
 
 § 329. OfHces and dignities. — Offices and dignities, 
 which are mentioned by Blackstone as incorporeal heredit- 
 aments, can not be so considered in a country where most 
 offices are elective at stated times for limited terms, and 
 where none are held longer than during good behavior. 
 Officers in private corporations are mere agents, whose 
 authority and duties will be treated of in their appropriate 
 place. 
 
 § 330. Franchises. — A franchise is a special privilege 
 conferred by the government on individuals, which does 
 not belong to the citizens of the country generally by 
 common right. Kent defines it as a particular privilege, 
 conferred by grant from the government and vested in 
 individuals. In a popular sense, it is synonymous with 
 right or privilege, as the elective franchise. Among the 
 most important of modern franchises is the right to be 
 a corporation, the franchise to control a toll-road, or 
 bridge, or to keep a ferry. 
 
 14 — Elem. Law.
 
 210 ELEMENTARY LAW [§ 331 
 
 §331. Rents. — Rents are a species of incorporeal 
 property. Rent is a compensation given for the posses- 
 sion of some corporeal inheritance. It may be paid in 
 money, in kind, by services or in any manner agreed 
 upon by the parties. Rent is regularly due and payable 
 on the premises from which it arises. Where a for- 
 feiture of a term for nonpayment of rent is attempted, 
 the rent by the old rule was strictly demandable and pay- 
 able before the time of sunset of the day whereon it is 
 reserved, but now it is not considered due until midnight 
 of the natural day on which it is payable. The day of 
 payment is usually fixed by the contract, and when this 
 is silent it is payable monthly or quarterly, according to 
 the custom prevailing at the time and place. 
 
 §332. Liens. — A lien is the right of a creditor to 
 have his debt or demand satisfied out of specific prop- 
 erty. Liens may be classified as statutory, equitable, con- 
 tract, or common-law liens. The lien of a state or 
 municipality for taxes, liens given to contractors, material- 
 men and laborers upon houses or other structures upon 
 which they have bestowed labor, or for which they have 
 furnished material, liens of judgments, are created by 
 statute. An artisan or mechanic who receives material 
 with which he constructs an article for another, or re- 
 ceives an article to be repaired, has a lien upon the article 
 for his labor. An innkeeper has a lien upon the baggage 
 and personal affects of his guest for his board and lodg- 
 ing. A carrier or a workman has a lien for his charges. 
 An attorney has a lien upon papers or funds of his client 
 in his possession for his services. A banker has a lien on 
 his debtor's funds in the bank. These are examples of 
 common-law liens. A seller of land who receives a part 
 of the purchase-money has a lien upon the land for the 
 unpaid balance. Persons not bound by any obligation to
 
 § 332] INCORPOREAL PROPERTY 211 
 
 do the service, who perform labor in saving a ship or her 
 cargo, or the lives of persons belonging to her, from 
 danger or loss in cases of shipwreck, derelict, capture or 
 the like, are salvors and have a lien upon the ship and 
 cargo for the value of the services so rendered. These 
 are some examples of equitable liens. 
 
 Liens by contract are created by the express agree- 
 ment of the parties, as in case of a loan of money, when 
 at the time the loan is made the borrower either verbally 
 or by written instrument pledges a specific piece of 
 property as security for the repayment of the money. 
 When the property is personal and is placed in the hands 
 of the lender, it is a pledge. When the borrower retains 
 possession, but executes and delivers to the lender an 
 instrument in writing, giving the lender the right to have 
 his debt paid out of the property described in the instru- 
 ment, it is a mortgage which creates a lien upon such 
 property, which may be enforced by foreclosure, if the 
 debt is not paid at maturity.
 
 Sec. 
 
 
 Sec. 
 
 333. 
 
 Its origin and nature. 
 
 339. 
 
 334. 
 
 Allodial estates. 
 
 
 335. 
 
 Wardship and marriage. 
 
 340. 
 
 336. 
 
 Local courts. 
 
 341. 
 
 ?,Z7. 
 
 Homage and fealty. 
 
 342. 
 
 338. 
 
 Military service. 
 
 343. 
 
 CHAPTER XXV 
 
 THE FEUDAL SYSTEM 
 
 Other obligations of the 
 
 tenant. 
 Domesday Book. 
 Escuage. 
 
 Changes in feudal system. 
 343. Abolition of the system. 
 
 § 333. Its origin and nature. — While it is not in- 
 tended, nor is it necessary here, to give a minute account 
 of the feudal system of England, some acquaintance with 
 its principal features is requisite to an understanding of 
 the subject of estates in land. The germs of a feudal 
 system existed among the Romans, but in its entireness 
 it never subsisted anywhere before it arose in the middle 
 ages in those parts of Europe in which the Germanic 
 nations settled themselves after the subversion of the 
 Roman empire. The essential character of the estate 
 denominated "feud," or "fief" was that from the first 
 and always it continued to be not an estate of absolute 
 ownership. The property, the ownership remained in 
 the grantor, the grantee was a mere tenant. Originally, 
 these "fiefs" were resumable at the pleasure of the 
 grantor, which made the tenure precarious and kept the 
 tenant in a state of timorous vassalage. To incur the 
 displeasure of liis chief or grantor meant expulsion from 
 his estate. The grantor was known as the suzerain or 
 lord, and the grantee as vassal or tenant. Subsequently, 
 the relation of lord and tenant was ameliorated, first by 
 giving the tenure a fixed duration for a term of years. 
 Later still, the relation and tenure became permanent, the 
 
 212
 
 § 334] THE FEUDAL SYSTEM 213 
 
 vassal taking an oath of fealty to his lord, in which he 
 bound himself to render fixed services, in return for 
 which he was to have his lands, so long as the service 
 was rendered. The obligation was mutual and an 
 attempt of the lord to dispossess a tenant, who was 
 faithful, was looked upon as an act of injustice. These 
 fiefs were then extended to life tenures. Then they be- 
 came descendible to the eldest son, and afterwards to 
 the collateral lines, and still later they became inheritable 
 by females. When fiefs first became hereditary is i 
 matter of dispute with historians, but in all the changes 
 in the system the relation of lord and tenant survived, 
 the ultimate property was still in the lord. Even after 
 fiefs became descendible, the new occupant was required 
 to make a new oath of fealty and acknowledge his vas- 
 salage, and thus obtain, in form at least, a new grant 
 from his lord, and he was bound to the same service 
 which was the consideration for the first grant. In case 
 of the extinction of the descendible line, or where the 
 fief was lost or forfeited by the crime of the vassal, it 
 escheated to the lord. At first it was only sovereign 
 princes who granted fiefs, but when they became 
 hereditary and fixed, the vassal himself would grant por- 
 tions of his fief to others, and thus there grew up the 
 practice of subinfeudation. 
 
 § 334. Allodial estates. — Fiefs were not the only 
 sort of land tenures in the ancient Germanic provinces. 
 Some lands were allodial, that is they were held by abso- 
 lute and independent title, and the holder owing no fealty 
 to an overlord was free from the exactions and burdens 
 to which the holder of a fief was subject. But this 
 freedom from vassalage had its disadvantages. If the 
 holder by such a tenure owed no fealty, he did not enjoy 
 the protection of a superior, which was due to a vassal
 
 214 ELEMENTARY LAW [§ 335 
 
 who held a fief. Wars were frequent among the feudal 
 lords, and these allodial proprietors were often the victims 
 of oppression. They were without organization, had no 
 superior, and were at the mercy of their more power- 
 ful neighbors. This led to a surrender of their tenures 
 to the lords, to whom they made their oath and fealty 
 and secured protection. This absorption of the allodial 
 lands was general in Italy, France, Germany and Eng- 
 land. William, the Norman, had witnessed in France 
 the evil effects of the divided allegiance of the people. 
 The vassal's first and paramount allegiance was to his 
 lord, and in cases of conflict with his king, the vassal 
 was true to his immediate protector. After the conquest, 
 William imposed new conditions upon those to whom 
 he gave the lands of England. The vassal took a double 
 oath, first to the king and under him to the lord. So 
 that Coke could say, in writing of English tenures, that 
 "All the lands and tenements in England, in the hands 
 of subjects, are holden mediately or immediately of the 
 king; for in the law of England we have not, properly, 
 allodium." 
 
 § 335. Wardship and marriage. — Some of the inci- 
 dents of the system, as it existed in some parts of Ger- 
 many and France and in England, bore with oppressive 
 weight upon the vassals. These were the incidents of 
 wardship and marriage. The lord was guardian of the 
 person and estate of the infant tenant during minority, 
 and the profits accruing therefrom added greatly to the 
 lord's revenues. So, before a female ward became of 
 age, the lord claimed and asserted the right of tendering 
 her a husband. If she rejected the offer she forfeited the 
 value of the marriage, that is, as much as any one would 
 give to the lord for permission to marry her. This right
 
 § 337] THE FEUDAL SYSTEM 215 
 
 was extended to male and female heirs, and also to 
 widows. 
 
 § 336. Local courts. — The grant of land as a fief 
 was usually accompanied by a grant of jurisdiction, 
 under which local courts were established, in which legal 
 controversies arising among the subjects living within the 
 bounds of the manor were adjudicated. These manorial 
 courts founded by the Normans exist under different 
 names in England. 
 
 § 337. Homage and fealty. — Primarily, the feudal 
 tenure was based upon the obligation or duty of the 
 vassal to render military service to his lord. When the 
 fief was granted, the vassal made homage to his lord in 
 this fashion: "He shall be ungirt, and his head un- 
 covered, and his lord shall sit, and the tenant shall kneel 
 before him on both his knees, and hold his hands jointly 
 together between the hands of his lord and shall say 
 thus: T become your man from this day forward of life 
 and limb, and of earthly worship, and unto you shall be 
 true and faithful, and bear to you faith for the tene- 
 ments that I claim to hold of you, saving the faith that I 
 owe unto our sovereign lord the king;' and then the lord 
 so sitting shall kiss him." The obligation of homage, 
 says Fleta, is mutual, binding the lord to protection of 
 the vassal, as well as the vassal to fidelity. Homage 
 was done without an oath, but when a freeholder did 
 fealty to his lord it was required that, "he shall hold his 
 right hand upon a book, and shall say thus: *Know ye 
 this, my lord, that I shall be faithful and true unto 
 you, and faith to you shall bear for the lands which I 
 claim to hold of you, and that I shall lawfully do to you 
 the customs and services which I ought to do, at the 
 terms assigned, so help me God and His saints,' and he
 
 216 ElvEMENTARY LAW [§ 338 
 
 shall kiss the book. But he shall not kneel when he 
 maketh his fealty, nor shall make such humble reverence 
 as is aforesaid in homage." 
 
 § 338. Military service. — The extent of military 
 service due to the lord from his tenant or vassal was 
 indeterminate at first, but afterwards, as the vassal became 
 more independent, it was fixed by usage or custom at 
 forty days on every occasion in which his lord required 
 his services. Women and the clergy were obliged to send 
 substitutes. Certain public officers were wholly exempt 
 from personal military service. The other duties of the 
 vassal, as Mr. Hallam gives them, were as follows : "It 
 was a breach of faith to divulge the lord's counsel, to 
 conceal from him the machinations of others, to injure 
 his person or fortune, or to violate the sanctity of his 
 roof and the honor of his family. In battle he was 
 bound to lend his horse to his lord, when dismounted; to 
 adhere to his side while fighting, and to go into captivity 
 as a hostage for him when taken. His attendance was 
 due at the lord's courts, sometimes to witness and some- 
 times to bear a part in the administration of justice." 
 
 § 339. Other obligations of the tenant. — We have 
 mentioned wardship and marriage as two of the incidents 
 of the relation of lord and tenant which were a source of 
 pecuniary profit to the lord. His revenues were re- 
 plenished by other means. Every new entrant upon a 
 fief paid a sum of money which was called a "relief." 
 When a tenant left no heir or forfeited his estate for 
 crime, it escheated to the lord. When a tenant sold any 
 part of his fief, a fine was paid for the permission to 
 sell, and finally there were sums paid for various "aids," 
 — to ransom the lord when a prisoner, to make his eldest 
 son a knight, to marry the lord's eldest daughter by giv-
 
 § 342] the; feudai. system 217 
 
 ing her a portion. The amount of the last two was fixed 
 by act of parhament in time of Edward III, at twenty 
 shillings each, but these aids were wholly abolished in 
 the reign of Charles II. 
 
 § 340. Domesday Book. — King William, when he 
 felt secure in his possession of the English throne, held 
 a council to inquire into the state of the nation and by 
 his order the Domesday Book was compiled. This book 
 contains minute and accurate surveys of the lands of the 
 kingdom. The work was committed to five justices in 
 each county, in the year 1081, and it was finished in five 
 years. This book, or books, for it consists of two 
 volumes, is preserved in the chapter house at West- 
 minster. It gave the king full information as to the 
 military resources of the kingdom, and has been invalu- 
 able to the English people in settling disputed boundary 
 lines. 
 
 § 341. Escuage. — As the hereditary character of 
 fiefs became established, the tenant ceased to be de- 
 pendent and subject to his lord. In course of time, 
 a pecuniary payment became the sole method by 
 which the tenant discharged his obligations. Henry 
 II found It inconvenient to keep the military force 
 of the kingdom in a state of efficiency, and he dis- 
 pensed with the personal military services of the 
 vassals, and substituted in lieu thereof the payment 
 of a fixed sum called "escuage," which is simply an- 
 other name for taxes, as we now know them. 
 
 § 342. Changes in feudal system. — The practice of 
 subdivision and sale of feuds worked great changes 
 in the rules of tenure and succession. This practice 
 became so common that it caused alarm, and by a
 
 218 EI^EMENTARY LAW [§ 343 
 
 provision of the charter of Henry III, subinfeudation 
 was restricted, and in the time of Edward I it was 
 forbidden. As a substitute, lands were allowed to be 
 sold, but the purchaser took and held title just as his 
 grantor did. This applied to sales of a man's entire 
 interest in land, and was held not to prohibit the vol- 
 untary alienation of land by persons during- their life- 
 time. Under the feudal system, lands could not be 
 sold for debt. By degrees, however, the power of the 
 creditor over the debtor's land was increased, until 
 by the modern statutes of bankruptcy in England the 
 whole of a bankrupt debtor's lands have become abso- 
 lutely salable for the payment of his debts. So by 
 a statute (3 and 4 Wm. IV, ch. 104), all a deceased 
 person's interest in land of whatever kind, not charged 
 by his will with payment of debts, whether he was 
 a trader within the bankrupt laws or not, constitutes 
 assets to be administered in equity for the payment 
 of debts. 
 
 § 343. Abolition of the system. — In spite of these 
 changes in some parts of the ancient feudalism, many 
 of its substantial provisions remained in force, and it 
 was not until after the civil war, which began in 
 1641, that the profits of wardship and marriage, and 
 other feudal prerogatives, were swept away. The 
 court of wards was discontinued in 1645, and it was 
 further enacted that all wardships, liveries, primer 
 seizins, values, forfeitures of marriage, etc., by reason 
 of any tenure of the king or others, should be totally 
 taken away, and that all fines for alienation, tenures 
 by homage, knight-service and escuage, etc., were 
 abolished. Of which statute Blackstone says: "It 
 was a greater acquisition to the civil property of this 
 kmgdom than even IMagna Charta itself; since that
 
 § 343] THE FICUDAI^ SYSTEM 219 
 
 only pruned the luxuriances that had grown out of 
 the military tenures, and thereby preserved them in 
 vigor; but the statute of King Charles extirpated the 
 whole, and demolished both root and branches." (12 
 Charles II, ch. 24..)
 
 CHAPTER XXVI 
 
 ANCIENT TENURES 
 
 Sec. 
 
 
 Sec. 
 
 
 344. 
 
 Tenure. 
 
 350. 
 
 Knight service, 
 
 345. 
 
 Property holden of supe- 
 
 351. 
 
 Aids. 
 
 
 rior. 
 
 352. 
 
 Relief. 
 
 346. 
 
 Lord paramount. 
 
 353. 
 
 Primer seizin. 
 
 347. 
 
 Middle lords and tenant 
 
 354. 
 
 Wardship. 
 
 
 paravaile. 
 
 355. 
 
 Marriage. 
 
 348. 
 
 Free and base tenure. 
 
 356. 
 
 Fines. 
 
 349. 
 
 Frank tenement and vil- 
 lenage. 
 
 357. 
 
 Escheat. 
 
 § 344. Tenure. — Before quitting this branch of the 
 subject, and proceeding to a consideration of modern 
 Engh'sh tenures, and the law of tenures as it prevails 
 in the United States, let us by way of summary or 
 recapitulation give the nature and definitions of the 
 ancient English tenures, as they existed under the 
 laws of feudalism. 
 
 § 345. Property holden of superior. — All real prop- 
 erty was holden of some superior, in consideration of 
 certain services to be rendered to the lord by the 
 tenant or possessor of the property. The thing holden 
 was a tenement. The possessor was a tenant. The 
 manner of possession was tenure. 
 
 § 346. Lord paramount. — The king, because all land 
 was holden mediately or immediately of him, was lord 
 paramount. 
 
 § 347. Middle lords and tenant paravaile. — Persons 
 who held immediately of the king, and granted por- 
 
 220
 
 § 350] ANCIENT TENURES 221 
 
 tions of their lands to others, were called middle lords. 
 The grantee of the middle lord was called tenan/ 
 paravaile, or the lowest tenant. 
 
 § 348. Free and base tenure. — These tenures were 
 held by four different kinds of service. As to quality 
 they were free or base, as to quantity certain or uncer- 
 tain. Free services were such as were not unbecom- 
 ing to a soldier, such as fighting for his lord, or pay- 
 ing a sum of money. Base services were servile, plow- 
 ing, making hedges and the like. Certain services 
 were fixed in quantity, as to days of military service 
 or payment of a fixed sum. Uncertain services de- 
 pended on unknown contingencies. 
 
 § 349. Frank-tenement and villenage. — From these 
 services arose four kinds of tenure. Tenements were 
 of two kinds, frank-tenement and villenage. Some 
 frank-tenements were held in consideration of hom- 
 age and knight service ; others in free socage, with 
 the service of fealty only. Of villenage,^ there was 
 pure villenage and privileged villenage. A tenant 
 by pure villenage was bound to do whatever was com- 
 manded him, and he was bound to an uncertain serv- 
 ice. A tenant by villein socage was bound to do 
 villein service, but it was certain. 
 
 § 350. Knight service. — Of these, knight service 
 was the niost honorable. For a knight's fee, estimated 
 at twelve plowlands (about one hundred and twenty 
 acres) each tenant must attend his lord to the wars 
 for forty days in every year, if called upon; if he held 
 less than a knight's fee, his service was to be in pro- 
 portion. These were the original services, and the 
 other incidents grew up by a series of fraudulent 
 impositions.
 
 222 ELEMENTARY LAW [§ 351 
 
 ^351. Aids. — Aids were at first mere benevolences 
 granted by the tenant to his lord in time of difficulty 
 and distress, but in time they grew to be matters of 
 right. There were three ; to ransom the lord, to make 
 his eldest son a knight, and to marry his eldest 
 daughter. 
 
 § 352. Relief. — Relief was a fine or sum of money 
 exacted by the lord from the new tenant when the 
 estate lapsed by the death of a form.er tenant. 
 
 § 353. Primer seizin. — Primer seizin was a sum 
 of money equal to a year's profits of the lands from 
 the heirs of a tenant in capite (one holding imme- 
 diately of the king), which the king exacted. 
 
 § 354. Wardship. — Wardship gave the lord the 
 custody of the lands and person of the tenant under 
 age without being compelled to account for profits. 
 
 § 355. Marriage. — Marriage was the right of the 
 lord to select a husband or wife for his ward, and if 
 his selection was rejected, he could recover whatever 
 a jury would assess as damages, or as much as any 
 one would bona fide give for the alliance. 
 
 § 356. Fines. — Fine was a sum exacted from a ten- 
 ant for a license to sell part of his holding. 
 
 § 357. Escheat. — Escheat was the resumption of 
 the fee by the lord, when issue failed or where the 
 estate was lost by the crime of the tenant. 
 
 Brave and spirited people became restive under these 
 onerous burdens, and but for the statute of Charles II, 
 above quoted, which abolished these exactions, the mon- 
 archy itself might have been subverted.
 
 CHAPTER XXVII 
 
 MODERN ESTATES 
 
 Sec. 
 
 
 Sec. 
 
 358. 
 
 Influence of feudal sys- 
 
 378. 
 
 
 tem. 
 
 379. 
 
 359. 
 
 Early grants affected. 
 
 380. 
 
 360. 
 
 Revival of allodial tenure. 
 
 
 361. 
 
 Sovereignty as source of 
 
 381. 
 
 
 title. 
 
 382. 
 
 362. 
 
 Estates. 
 
 383. 
 
 363. 
 
 Fee simple. 
 
 384. 
 
 364. 
 
 Fee simple in abeyance. 
 
 385. 
 
 365. 
 
 Use of word "heirs". 
 
 
 366. 
 
 Estates for life. 
 
 386. 
 
 367. 
 
 Rights of life tenant. 
 
 
 368. 
 
 Emblements. 
 
 387. 
 
 369. 
 
 Taxes and interest. 
 
 
 370. 
 
 Waste. 
 
 388. 
 
 371. 
 
 Estates for years. 
 
 389. 
 
 372. 
 
 Rent. 
 
 390. 
 
 373. 
 
 Duration of tenancy. 
 
 391. 
 
 374. 
 
 Distress. 
 
 392. 
 
 375. 
 
 Apportionment of rent. 
 
 393. 
 
 2,76. 
 
 Estates at will. 
 
 394. 
 
 m. 
 
 Estates at sufferance. 
 
 
 Base fee. 
 
 Conditional fee. 
 
 Estates tail and statute de 
 donis. 
 
 Tenant by the curtesy. 
 
 Dower. 
 
 Assignment of dower. 
 
 Estates upon condition. 
 
 Estates upon condition 
 implied. 
 
 Estates upon condition ex- 
 pressed. 
 
 Conditions precedent and 
 subsequent. 
 
 Estates in remainder. 
 
 Rule in Shelley's Case. 
 
 Executory devises. 
 
 Estates in reversion. 
 
 Estates in severalty. 
 
 Joint tenancy. 
 
 Tenancy in common. 
 
 § 358. Influence of feudal system. — Judge Cooley, 
 speaking of tenures in America, says: "Although the 
 feudal system never obtained much foothold in this 
 country, there are many things in our law of real estate 
 which require for their understanding that we bear in 
 mind the fact that the American system is based upon 
 the common law of England, and that that law grew up 
 while the feudal system was in force. As lands in 
 England were held under that system, and its maxims 
 thoroughly pervaded the law of real estate, it was not to 
 
 223
 
 224 ELEMENTARY I,AW [§ 359 
 
 be expected that when grants of land were made in this 
 country under circumstances unknown in England, a new 
 system of law with new terms and maxims would at 
 once spring into existence to provide for the new con- 
 dition of things and bearing no trace of the system which 
 it supplanted." 
 
 § 359. Early grants affected. — As a matter of fact, 
 however, the early grants in America were made with a 
 reference to a continuation of something like a feudal 
 tenure, and 'many incidents of that system attached them- 
 selves to these grants. The tenure prescribed was tenure 
 in free and common socage, to be held of the king, as 
 of some manor in England. When the colonies threw off 
 allegiance to the crown, and became independent states, 
 each of them succeeded to all the rights of the crown 
 within its limits, while the United States as a sovereignty 
 succeeded to all the rights of the crown to unoccupied 
 territory not within the limits of any of the states and 
 not previously conveyed. 
 
 § 360. Revival of allodial tenure. — Being thus pos- 
 sessed of the vacant lands, the United States and the 
 several individual states have proceeded to make sale and 
 conveyance thereof and to give titles which, though 
 called fees, are in truth allodial. At the same time the 
 states by statutory and constitutional provisions have 
 gradually abolished such of the feudal incidents as still 
 attached to the estates previously granted by the crown, 
 until, as Chancellor Kent says, 3 Com. 513, "By one 
 of those singular revolutions incident to human affairs, 
 allodial estates, once universal in Europe, and then almost 
 universally exchanged for feudal tenures, have now, after 
 the lapse of many centuries, regained their primitive 
 estimation in the minds of freemen."
 
 § 364] MODERN ESTATES 225 
 
 § 361, Sovereignty as source of title. — In America 
 as in England the sovereignty is recognized as the source 
 of all title, and the state succeeds thereto in default of 
 heirs; but this right is not peculiar to the feudal system; 
 neither is eminent domain, which is sometimes referred 
 to as a remaining incident of the feudal system. 
 
 § 362. Estates. — An estate in lands, tenements and 
 hereditaments signifies such interest as the tenant has 
 therein. An estate is either for an uncertain period, as 
 for life, for a certain period of years, or unlimited, as 
 when it is vested in a man and his heirs forever, without 
 mentioning what heirs. This last is an estate in fee 
 simple, which is the largest estate a man can have in 
 lands. 
 
 § 363. Fee simple. — The fee simple, or inheritance 
 of lands, is generally vested in some person or 
 other. Inferior estates may be carved out of it. One 
 may have the fee simple, another may have a term for 
 years, another may have a life estate, another may have 
 the right of possession, another may be in actual posses- 
 sion, of the same land. 
 
 § 364. Fee simple in abeyance. — A fee simple may 
 be in abeyance, according to Blackstone, as where there is 
 a grant to John for life, and afterwards to the heirs of 
 Richard. The fee in such can not vest in the heirs of 
 Richard till his death, because no one can be an heir of 
 the living, and John has plainly a life estate only. The 
 fee, therefore, is in abeyance while Richard lives. The 
 inconvenience resulting from this notion has led some 
 learned writers to repudiate it. Kent says that though 
 the good sense of the thing and the weight of liberal 
 doctrine are strongly opposed to the ancient notion of 
 IS — Elein. Law.
 
 226 ELe;me;ntary law [§ 365 
 
 an abeyance, the technical rule is that livery of seizin 
 takes the reversion of the inheritance from the grantor, 
 and leaves him no tangible or disposable interest. He 
 cites Preston on Estates as insisting that an estate in 
 freehold, depending on another estate of freehold and 
 limited on a contingency, must be in abeyance. 
 
 § 365. Use of word "heirs." — At common law, 
 where it was intended to convey a fee simple estate by 
 deed, the word "heirs" was essential. In many of the 
 United States this strict rule has been abrogated by stat- 
 ute. In some states a form of deed is prescribed by 
 statute, which prescribes what the effect may be. The 
 short form in Indiana, which is in substance, "A con- 
 veys and warrants to B" certain land, describing it, is 
 held to be sufficient to conve)?^ the land, with the appur- 
 tenances and hereditaments to the grantee, his heirs and 
 assigns with covenants of seizin and warranty, as fully 
 as if these words and the full covenants were written in 
 the deed. A government grant in any form the legisla- 
 ture may prescribe will take effect according to the 
 legislative intent. A grant to a sovereignty requires no 
 words of inheritance. The strict rule requiring the use 
 of the word "heirs," to create or convey a fee has no 
 application to wills. Where the testator's intention to 
 create an estate of inheritance is manifest from the whole 
 will, it will be so construed. Some states have gone so 
 far as to enact by statute that every devise of land shall 
 be construed to convey a fee simple, unless it appears by 
 express words that a less estate was intended. 
 
 In suits to compel the specific performance of agree- 
 ments to convey land equity will sustain the right of a 
 party asking a conveyance in fee where it appears to have 
 been the intention of the parties to contract for a fee.
 
 § 367] MODERN estate;s 227 
 
 § 366. Estates for life. — Estates for life are next 
 in importance. These outranlv estates for hundreds of 
 years, because it is said that no one knows how long a 
 man may live. Where an estate for life is carved out 
 of a fee the land comes back to the grantor when the 
 estate for life ends, and that which the grantor has is an 
 estate in reversion; if, however, a grant is made for life 
 to one, and at his death to another and his heirs, this 
 latter takes a remainder in fee. An estate for life may 
 be for the life of the grantee or for the life of another. 
 An estate for life in this country terminates with the 
 natural death of the person. Civil death, as it is called 
 in England, is not now known in this country. When 
 one entered a monastery he was civilly dead, and in this 
 country under the first general bankrupt law the bankrupt 
 was regarded as civilly dead. 
 
 § 367. Rights of life tenant. — The life tenant has 
 certain rights determining the use he may make of the 
 property. He may take such wood and timber as may 
 be necessary to keep up the buildings and inclosures and 
 to supply him with fuel. He has no right to cut down 
 timber and sell it for mere profit, but if there is a dis- 
 proportion of woodland to arable land he may make a 
 clearing; that is, he may remove the growing timber and 
 dispose of the same so as to increase the arable, land. 
 The general rule is that he is entitled to the temporary 
 use of the estate as he finds it, but in the United States, 
 whether cutting any kind of trees in any particular case 
 is waste seems to depend upon the question whether the 
 act is such as a prudent farmer would do with his own 
 land, having regard to the land as an inheritance, and 
 whether the doing of it would diminish the value of the 
 land as an estate.
 
 22S ELKMiCNTARY LAW [§ 368 
 
 § 368. Emblements. — On the death of a life tenant 
 his representatives have a right to the growing crops 
 upon which the tenant has bestowed his labor. In fact, 
 whenever one holds lands for an uncertain term, and dies, 
 the emblements, or growing crops, which are the fruit of 
 his labor, go to his representatives. The mere prepara- 
 tion of the land for sowing will not give such right unless 
 the tenant has planted. 
 
 § 369. Taxes and interest. — The life tenant who 
 receives the profits of the land must keep down the taxes, 
 and if wdien he comes to the estate it is incumbered, he 
 must pay the interest on the incumbrance, though he is 
 not bound to discharge the principal. 
 
 § 370. Waste. — If a life tenant commits or permits 
 waste, he may be enjoined at the suit of the remainder- 
 man or reversioner. If he permits taxes to become 
 delinquent, so that the estate is in danger of being sold, 
 the courts will sometimes, upon a proper showing, decree 
 a forfeiture of the life estate. 
 
 § 371. Estates for years. — An estate for years is 
 where one is entitled to the possession and profits of 
 land for a certain period. This estate is always created 
 by th^ acts of the parties. The instrument creating it 
 is termed a lease, and tlie parties are landlord and tenant. 
 The execution and delivery of the lease perfects the 
 title of the tenant. Sometimes these leases are practically 
 interminable, though in form and theory they are for a 
 fixed term, as where one leases lands for a term of 
 ninety-nine years, renewable forever. It is quite common 
 for railway companies to lease their lines to other com- 
 panies for a period of nine hundred and ninety-nine 
 years, and yet in law such estates and terms are deemed
 
 § 372] MODERN ESTATES 229 
 
 to be of less dignity than a life estate. In some particu- 
 lars the rights of the tenant for years are the same as 
 those which belong to the tenant for life. The tenant 
 for years has no right to emblements, for the term of 
 his tenancy is fixed, but he may take timber sufficient for 
 fuel and to keep up the repairs of buildings and enclo- 
 sures, and he may sublet the premises, unless that right 
 is cut off or restricted by the terms of the lease, and he 
 is liable in damages for waste, and may be enjoined in 
 equity from committing or permitting it. 
 
 § 372. Rent. — Rent, according to Blackstone, is "a 
 certain profit issuing yearly out of lands and tenements 
 corporeal," or it is a periodical compensation in money 
 or otherwise agreed to be given by the tenant to the 
 landlord for the use of realty, the payment of which may 
 be enforced like any other demand. One occupying the 
 land of another, where there is no contract to pay a 
 specific rent, is liable not for rent as such, but for the 
 use and occupation of the premises, the amount to be 
 reasonable, and in cases of dispute to be fixed by the 
 jury. 
 
 If a tenant is evicted by a title superior to that of 
 his landlord, the obligation to pay rent ceases ; but so 
 long as he remains in possession, neither the right of the 
 landlord to demand rent nor the landlord's title can be 
 disputed by the tenant. 
 
 A destruction of the premises by some inevitable 
 accident will not exonerate the tenant from liability to 
 pay rent for the unexpired term unless the lease contains 
 a stipulation to that effect. There are exceptions to this 
 rule, as where one rents apartments in a block and the 
 whole structure is destroyed, the obligation to pay rent 
 ceases. And it has been held that where the premises are 
 destroyed after the execution of a lease, and before the
 
 230 ELEMENTARY LAW [§ 373 
 
 lessee has taken possession, the tenant is not hable, and 
 so a contract for a term to begin in the future does not 
 bind the tenant to pay rent, if before the beginning of 
 the term the premises are destroyed. And in case of a 
 partial destruction of a building, if the insurance company 
 takes possession to restore the premises, the tenant is not 
 liable for rent, while the insurance company occupies the 
 building for that purpose. 
 
 Where a lease provides for a forfeiture for nonpay- 
 ment of rent when due, a tender or readiness to pay on 
 the premises at any time before sunset on the day stipu- 
 lated will be sufficient. If a different place for payment 
 is designated in the lease, the payment or tender must be 
 made there. 
 
 § 373. Duration of tenancy. — In ascertaining the 
 time of the beginning and ending of a term where the 
 words "month" and "year" occur in leases the Gregorian 
 calendar is used, by which the beginning of the year is 
 January 1. Prior to the year 1752 the Julian calendar, 
 fixing the beginning of the year on the 25th of March, 
 was used. When the word "year" occurs in a statute or 
 contract it is to be understood as meaning the whole 
 twelve months according to the calendar, unless a con- 
 trary intention is clearly expressed. The period of time 
 is always to be settled according to the intention of the 
 parties. At common law a month meant a lunar month, 
 but now it is held to mean a calendar month, both in 
 England and the United States. A natural day is full 
 twenty-four hours, and in legal contemplation the legal 
 day is without fractions, but if two acts are performed 
 on the same day and it is important which was first in 
 time, evidence will be heard to fix the exact hour and 
 minute. This becomes important in disputes as to the 
 priority of liens, deeds, time of recording and the like.
 
 § 374] MODERN ESTATES 231 
 
 In computing time from the day of the date, or from a 
 certain act or event, the day of the date or act is to be 
 excluded, unless it is clear that the parties to the instru- 
 ment had a different intent. A week means a full week 
 of seven days, and if by statute or rule of court a notice 
 is to be published for a certain number of weeks, the 
 publication is not completed until the number of weeks 
 has fully expired from the date of the first publication. 
 Thus, if the publication is to be once in each week for 
 six successive weeks, and the first publication is on 
 Tuesday, the publication is not completed without includ- 
 ing Monday of the seventh week, which is the forty- 
 second day, and whatever was to be done dependent on 
 such publication could not be done earlier than Tuesday 
 of that week. When the day for the performance of an 
 act or the payment of money falls on a legal holiday, the 
 next business day following is the one on which per- 
 formance or payment is to be made; except, however, 
 that where days of grace are allowed, and the last day of 
 grace falls on a legal holiday, the next preceding business 
 day is the day for payment. The computation of time 
 and the meaning to be given to terms such as "month," 
 "year," etc., are often the subject of statutory regulation, 
 and where there is a conflict, statute law supersedes and 
 displaces the common law. 
 
 § 374. Distress. — Distress was a right which the 
 landlord had at common law to seize and hold the 
 tenant's personal property to enforce the payment of rent. 
 It became unpopular in the United States, has been 
 abolished in some of them by statute, and has been super- 
 seded by the ordinary remedies for the recovery of money 
 due. Some states give the landlord a first lien upon all 
 crops for the security of his rent.
 
 232 EI^EMENTARY LAW [§ 375 
 
 § 375. Apportionment of rent. — During the exist- 
 ence of the tenancy the landlord or reversioner may sell 
 part of the leased premises. In such cases the rent is 
 apportioned and paid to the new owners in proportion 
 to the value of the land. 
 
 § 376. Estates at will. — An estate at will was for- 
 merly when a tenant occupied at the mere pleasure of 
 him who had the next estate. The landlord could termi- 
 nate it any moment without notice. This harsh rule was 
 modified at first, so that an estate at will was equally at 
 the will of both parties, and later it became settled that 
 unless there was an express agreement to hold at will, 
 such tenancies should be construed as estates from year 
 to year. These changes have virtually abolished the old 
 tenancy at will, and now such estates are determinable 
 by notices to quit, and the form and length of time for 
 giving notice is regulated by statute. Tenants holding 
 such estates are entitled to emblements, owing to the 
 uncertainty of their tenure. 
 
 § 377. Estates at sufferance. — An estate at suffer- 
 ance is where one who comes lawfully into possession 
 of land holds over after his interest is determined. And 
 while he is not liable strictly for rent as such, he is liable 
 for such sum as may be reasonable in an action for use 
 and occupation. In some states, a penalty in addition 
 to this is awarded against one who unlawfully deprives the 
 owner of the use of his land. 
 
 § 378. Base fee. — A base or qualified estate in fee 
 is an interest which may continue forever, but may be 
 determined without the aid of a conveyance by some act 
 or event circumscribing its duration. A limitation to a 
 man and his heirs, so long as he shall have heirs of his 
 body, or so long as St. Paul's church shall stand, are
 
 § 380] MODERN ESTATES 233 
 
 examples of this sort of an estate. The owner of such 
 an estate has all the rights of an owner of a fee simple, 
 until his estate is determined. Such estates are called 
 base because their duration depends upon the occurrence 
 of collateral circumstances which qualify and debase the 
 purity of the fee. 
 
 § 379. Conditional fee. — A conditional fee is one 
 which restrains the fee to some particular heirs exclusive 
 of others, as to the heirs of a man's body, or to the 
 heirs male of his body. At common law this was con- 
 strued to be a fee simple on condition the grantee had the 
 heirs prescribed. If he died without such heirs the 
 estate reverted to the grantor. If he had such heirs the 
 fee became absolute in him, and he could sell his estate 
 and bar his own issue and prevent a reverter. This 
 right of the grantee was cut off by the statute of Edward 
 I, which prohibited a sale by the grantee, to the detri- 
 ment of his issue and the grantee's reversioner. 
 
 § 380. Estates tail and statute de donis. — This stat- 
 ute converted what before had been a fee simple estate 
 into an estate in fee tail. This restraint upon the power 
 of alienation fettered inheritances and created perpetuities, 
 which were condemned by Bacon and Coke and other 
 writers. The landed aristocracy opposed all attempts to 
 facilitate sales of land, but the growing spirit of com- 
 merce and industry, foiled by the legislature, found ex- 
 pression in a species of judicial legislation, by which the 
 fiction of a common recovery was allowed to cut off the 
 entail. Common recoveries were fictitious suits, in the 
 nature of pious frauds, allowed by the courts, the 
 object of which was to get rid of the mischievous con- 
 sequences of the statute of Edward I. If the tenant 
 wished to have his estate tail converted into an absolute
 
 234 ELEMENTARY LAW [§ 381 
 
 fee, he procured himself to be sued by a fictitious person, 
 who claimed that the tenant had no right to the land. 
 The parties to the suit, as the made-up record would 
 show, then compromised the case and a judgment was 
 entered, the result of which was that what was formerly 
 a fee tail estate was converted into an absolute fee with 
 all its incidents. To such awkward shifts, such subtle 
 refinements, says Blackstone, were our ancestors obliged 
 to have recourse in order to get the better of that stub- 
 born statute of Edward I. The design for which these con- 
 trivances were set on foot was certainly laudable, the un- 
 riveting the fetters of estates tail, which were attended with 
 a legion of mischiefs to the commonwealth, but while we 
 applaud tlie end we can not admire the means. 
 
 Estates in fee tail with all their inconveniences existed 
 in this country before the Revolution. They have now 
 become obsolete from disuse or have been abolished or 
 modified by the legislatures of the different states. The 
 general tendency of judicial decision as well as legislation 
 in this country has been in the direction of removing all 
 limitations upon the power of sale of real estate, and 
 preventing perpetuities. 
 
 § 381. Tenant by the curtesy. — Where a man mar- 
 ries a woman who is seized during marriage of an 
 estate of inheritance, and has by her issue born alive 
 capable of inheriting the estate, and the wife dies before 
 the husband, he takes an estate for life. This is some- 
 times called tenancy by the curtesy of England, though 
 the same estate existed in ancient times in other countries. 
 In this country the rule prevails in all the states where 
 that kind of estate has not been abolished by statute. 
 Though it is held that the wife's dower is lost by her 
 adultery, no such conduct on the part of the husband will 
 work a forfeiture of the curtesy.
 
 § 383] MODERN ESTATES 235 
 
 § 382. Dower. — Dower exists where a man seized 
 of an estate of inheritance dies in the Hfetime of his 
 wife. By the common law she was entitled in that case 
 to be endowed of a third of the estate for life. At first 
 it was limited to lands held by the husband at the time 
 of the marriage, but by Magna Charta it was extended 
 to all lands, of which the husband was seized during 
 coverture. This right or estate of dower exists in all of 
 the states where it has not been modified or changed by 
 statute. Dower can not be claimed as against a mortgage 
 given by the husband for unpaid purchase-money. Nor 
 is it necessary for a wife to join with her husband in a 
 mortgage securing the purchase-money. If the wife 
 unites with her husband in conveying his land, releasing 
 her dower therein, her right is extinguished. If a wife 
 joins in a mortgage with her husband, who dies, and upon 
 foreclosure a surplus above the mortgage debt is realized, 
 she may have dower in such surplus, though the husband 
 may have released the equity of redemption. Dower may 
 be barred in various ways, though the husband by his 
 act alone, without the wife's assent, can not bar it. It 
 may be barred by deed, by the adultery of the wife, by 
 divorce, by jointure, which is a joint estate settled upon 
 husband and wife by which the whole estate goes to her 
 on his death, by an antenuptial contract in which in lieu 
 of dower a sum of money or something else is agreed 
 to be taken in lieu of dower, by a bequest in lieu of 
 dower, if the widow elects to take under the will. 
 
 § 383. Assignment of dower. — The widow's dower 
 may be set off or assigned by agreement with the heirs, 
 or by an amicable partition, or by an adversary proceed- 
 ing in which the court will see that she gets her equitable 
 one-third of the real estate, to which her right of dower 
 has attached.
 
 236 ELEMENTARY LAW [§ 384 
 
 § 384. Estates upon condition. — Estates upon con- 
 dition are such as have a quahfication annexed to them 
 by which they may upon the happening of a particular 
 event be created, enlarged or destroyed. They are 
 divided into estates upon conditions implied in law^, and 
 estates upon conditions express or in deed. 
 
 § 385. Estates upon condition implied. — A tenant 
 for life or for years is under an implied obligation to 
 refrain from waste or any fraudulent or wrongful act 
 which would injure the freehold. For wilful misconduct 
 of this sort, the estate may be forfeited. So a grant to 
 a man of an office has the implied condition annexed to 
 it that he will perform its duties. A corporation holds a 
 franchise under the implied condition that it will fulfill 
 its duties to the public, and a violation of its duties by 
 nonuser or misuse will work a forfeiture of the estate. 
 It is to be here remarked, however, that it is for the 
 state alone, and not for a private citizen, to institute and 
 carry on proceedings for forfeiture of corporate fran- 
 chises. The state may waive a condition broken as an 
 individual may. 
 
 § 386. Estates upon condition expressed. — Where 
 an estate is granted in fee simple or otherwise, with an 
 express qualification annexed whereby the estate shall 
 commence, be enlarged or defeated upon performance or 
 breach of such qualification or condition, it is an estate upon 
 condition expressed. Conditions are either precedent or 
 subsequent. Precedent conditions must happen or be per- 
 formed before the estate vests. Subsequent conditions are 
 such which by reason of nonperformance defeat the estate 
 already created. 
 
 § 387. Conditions precedent and subsequent. — The
 
 § 387] MODERN ESTATES 237 
 
 intention of the parties as it appears in the deed deter- 
 mines whether the condition is precedent or subsequent. 
 A condition precedent which is possible and lawful must 
 be strictly performed. Conditions subsequent which 
 defeat the estate are strictly construed against the grantor. 
 Conditions must be annexed at the time the estate is 
 created; they must operate upon the whole of the estate, 
 though they may be limited to a part of the land. If 
 an estate in fee is granted with a provision that upon 
 the happening of an event the estate shall cease for a 
 number of years, it would not be good. Conditions can 
 only be reserved in favor of the grantor and his heirs. 
 Conditions which are impossible when made, or become 
 so by the act of God, are void. Unlawful conditions are 
 void. Conditions repugnant to the nature of the estate 
 are not good, as where an estate is given in fee on con- 
 dition that the grantee will not sell it or enjoy it. Con- 
 ditions In absolute prevention of marriage are void, 
 though in some states widows who take lands from their 
 deceased husbands coupled with such a condition are 
 bound by the conditions. Conditions may be performed 
 by any one having an interest in the estate. Equity will 
 relieve against forfeitures for breach of conditions when 
 compensation can be made in damages. Where a condi- 
 tion is broken the grantor may bar himself from taking 
 advantage of it, as by taking rent afterwards with knowl- 
 edge. Mortgages are sometimes treated under the head 
 of estates upon condition. They are so considered yet 
 in some of the states, but in most of them they are 
 treated as mere liens. The common-law rule is that the 
 mortgagee takes the title subject to be defeated by pay- 
 ment of the mortgage debt. This rule prevails in most 
 of the older states, but a large majority of the states of 
 the Union, either by statute or the decrees of the courts, 
 treat a mortgage as a mere lien to secure the debt, while
 
 238 EI^EMENTARY LAW [§ 388 
 
 the title remains in the mortgagor until default, fore- 
 closure and sale. The methods by which the mortgagor 
 proceeds to enforce his lien after the maturity of the 
 mortgage debt are regulated by the statutes of the differ- 
 ent states. 
 
 § 388. Estates in remainder. — Estates in remainder 
 were popular in England because they facilitated the 
 creation of family settlements, and often there were 
 several remainders limited upon one another to prevent an 
 estate passing out of the family. Remainders are not 
 favored in this country, anything tending to obstruct the 
 free sale of land being opposed to the spirit of our 
 people and institutions. Blackstone's definition is con- 
 cise and comprehensive. "An estate in remainder is an 
 estate limited to take effect and be enjoyed after another 
 estate is determined." It is a vested remainder where 
 there is a person in being who would have an immediate 
 right of possession upon the ceasing of the precedent 
 estate. It is a contingent remainder if the person to 
 whom, or the event upon which, it is limited is uncertain. 
 If one holding the fee simple grants lands to A for 
 twenty years, and then to B and his heirs forever, A 
 is tenant for years, remainder to B in fee. Or there 
 may be a grant to A for years, then to B for life, and 
 then to C and his heirs forever, then A is tenant for 
 years, B for life, with remainder in fee to C. These 
 several estates are parts of one estate, the fee simple 
 of the grantor out of which the three several estates are 
 carved. It follows, of course, that no remainder can be 
 limited after a grant in fee simple. There must be a 
 precedent estate created, upon which the remainder is 
 limited, and this precedent estate is called in law the 
 particular estate. It is essential also that the remainder 
 must commence or pass out of the grantor at the time the
 
 § 390] MODERN ESTATES 239 
 
 particular estate was created. The remainder must vest 
 in the grantee during the continuance of the particular 
 estate, or instantly upon its termination. A contingent 
 remainder may never take effect, as where there is a 
 grant to A for life, remainder to B's eldest son (then 
 unborn) in tail. If B has no son when the particular 
 estate is determined, that is, at the death of A, the re- 
 mainder is gone. 
 
 § 389. Rule in Shelley's Case. — And here is a proper 
 place to consider what is known as the rule in Shelley's 
 Case. It was laid down in the following language in 1 
 Rep. 104 as follows: "It is a rule of law, where an 
 ancestor by any gift or conveyance takes an estate in 
 freehold, and in the same gift or conveyance an estate is 
 limited mediately or immediately to his heirs in fee or in 
 tail, that always in such case the heirs are words of 
 limitation of the estate and not words of purchase." 
 Land is acquired in two ways, by descent and purchase. 
 Where one derives title through a deed or will, he is a 
 purchaser. Where it comes to him by virtue of his kin- 
 ship or relation to an ancestor, he takes by descent. But 
 if by will an estate is given which is the same in quality 
 and quantity as that which would go by descent, it is an 
 estate by descent. The effect of the rule in Shelley's 
 Case was to cut off what would seem to be intended as 
 a remainder limited to the heirs of the grantee, and to 
 make the estate an absolute fee in the grantee. This rule 
 has been generally adopted in this country as a part of 
 the common law, although it has been modified or abol- 
 ished by statute in some of them. 
 
 § 390. Executory devises. — An executory devise of 
 lands is such disposition of them by will that thereby no 
 estate vests at the death of the devisor, but only on some
 
 240 ELEMENTARY LAW [§ 391 
 
 future contingency. Executory devises were created to 
 carry out the purposes of the testator. A devise to a 
 femme sole and heirs upon the day of her marriage is a 
 good executory devise. If she does not marry the estate 
 would go by descent to the heirs of the testator. A devise 
 to A and his heirs, but if he dies before the age of 
 twenty-one years, then to B and his heirs, is good, though 
 if these words were used in a deed the remainder would 
 be void and A would take a fee. Executory devises 
 were abused by making them the means of creating 
 perpetuities. So there is a rule at common law which has 
 been incorporated into the statute law of many states that 
 the utmost length of time that is allowed for the con- 
 tingency of an executory devise to happen in, is the dur- 
 ation of a life or lives in being and twenty-one years 
 afterw'ards. 
 
 § 391. Estates in reversion. — An estate in reversion 
 is the residue of an estate left in the grantor to com- 
 mence in possession after the determination of some par- 
 ticular estate granted out by him. It grows out of the 
 legal maxim that whatever a man does not dispose of 
 remains to him and his heirs. It is a present interest, 
 but can only take effect in the future as is implied in 
 the definition above given. 
 
 § 392. Estates in severalty. — Estates are now to be 
 considered with respect to the owners thereof, whether 
 in severalty, is tenants in common or as joint tenants. 
 An estate in severalty is one which has a single owner. 
 
 § 393. Joint tenancy. — At common law a joint ten- 
 ancy was where lands or tenements were granted to two 
 or more persons, to hold in fee simple, fee tail, for life, 
 for years or at will. In joint tenancies, there must be 
 unity of interest, of title, of time and of possession. One
 
 § 394] MODERN ESTATES 241 
 
 of the incidents of this tenancy at common law was the 
 right of survivorship, by which on the death of one the 
 entire estate vested in the survivor. In this sense, joint 
 tenancies do not exist in this country, except in the case 
 of conveyances to husband and wife jointly. These are 
 called tenancies by the entirety. No part of such an 
 estate can be sold by one so as to affect the right of 
 survivorship of the other. No part of it can be seized 
 in execution for the debt of either during its continu- 
 ance, and upon the death of one the whole vests in the 
 survivor. In Ohio the courts have refused to recognize 
 such a tenancy, by holding that husband and wife holding 
 by joint deed or devise are tenants in common, without 
 the right of survivorship. 
 
 § 394. Tenancy in common. — A tenancy in com- 
 mon is where there are several owners who may hold by 
 different titles, in different interests, which may be ac- 
 quired at different times, the only unity being unity of 
 possession. 
 
 Tenants in common may have partition of the lands. 
 They may sue one another for waste. The possession 
 of one is the possession of all. If one receives all the 
 rent, or more than his share, he is liable to the other 
 tenants for the excess. They are liable for their pro- 
 portionate share of the expense for repairs, for taxes 
 and for insurance. Tenants in common must act in good 
 faith towards each other. One can not buy in the estate 
 for himself at a delinquent tax sale. If one buys in an 
 outstanding title which threatens the estate, he can not 
 claim this in his own right, to the prejudice of his co- 
 tenants, if they are willing to pay their share of the 
 purchase-money. 
 
 16 — Elem. Law.
 
 CHAPTER XXVIII 
 
 TITLE TO REAL PROPERTY, HOW ACQUIRED 
 
 Sec. 
 
 
 Sec. 
 
 395. 
 
 Ways of acquiring title. 
 
 406. 
 
 396. 
 
 Title by occupancy. 
 
 407. 
 
 397. 
 
 Adverse possession. 
 
 
 398. 
 
 Occupying claimant. 
 
 408. 
 
 399. 
 
 Title by marriage. 
 
 409. 
 
 400. 
 
 Title by descent. 
 
 410. 
 
 401. 
 
 Title by devise. 
 
 411. 
 
 402. 
 
 Wills. 
 
 412. 
 
 403. 
 
 Capacity to make wills — 
 
 
 
 Written wills. 
 
 413. 
 
 404. 
 
 Revocation of wills. 
 
 414. 
 
 405. 
 
 Title by purchase. 
 
 415. 
 
 Title bond. 
 
 Deeds by owners not in 
 possession. 
 
 Forms of deeds. 
 
 Registration of deeds. 
 
 Parties to deeds. 
 
 Deeds by officers. 
 
 Description of land con- 
 veyed. 
 
 Title by eminent domain. 
 
 Title by escheat. 
 
 Title by forfeiture. 
 
 § 395. Ways of acquiring title. — Title or ownership 
 of real property may be acquired by occupancy or posses- 
 sion when it continues long enough to ripen into a per- 
 fect title, by marriage, by devise, by descent, or by con- 
 tract. 
 
 § 396. Title by occupancy. — Mere possession or oc- 
 cupancy is the lowest form of title, but it is good in the 
 occupant against the world until some one shows a better 
 title, but any show of right in a claimant would be good 
 as against a mere intruder. As we have seen, property 
 without an owner belongs to the first one who takes pos- 
 session of it. This right, which was so important at the 
 time of the early settlements on this continent, is of little 
 value now that most of our public domain has been dis- 
 posed of. Its assertion by the European nations, who are 
 extending what they choose to call their "spheres of influ- 
 ence" in Africa, bids fair to result in serious complica- 
 
 242
 
 § 397] TITLE TO REAL PROPERTY, HOW ACQUIRED 243 
 
 tions and wars such as grew up here in the last century 
 between France and England. Where two claim by pos- 
 sessory titles, one being in present possession and the 
 other having had prior possession, it is the rule in Eng- 
 land and America that proof of prior possession is 
 presumptive evidence of title and will prevail over the 
 claims of the more recent occupant. It is not necessary 
 in such a case that the prior possession should have con- 
 tinued for twenty years. The statutes of limitations 
 usually provide that no action for the recovery of the 
 title or possession of real estate shall be maintained after 
 twenty years from the time the cause of action accrued, 
 unless the person entitled to such action was under the 
 disabilities of infancy, coverture, insanity or imprison- 
 ment. Special periods of limitations are fixed by the 
 statutes of different states and they are constantly under- 
 going modification. 
 
 § 397. Adverse possession. — In order to make pos- 
 session for the statutory period of limitations a bar to 
 an action, the possession must be adverse. Adverse pos- 
 session is a possession inconsistent with the right of the 
 true owner; in other words, where a person possesses 
 property in a manner in which he is not entitled to pos- 
 sess it, and without anything to show that he possesses it 
 otherwise than as owner — that is, with the intention of 
 excluding all persons from it, including the rightful owner 
 — he is in adverse possession of it. Thus, if A is in 
 possession of a field of B's, he is in adverse possession 
 of it, unless there is something to show that his possession 
 is consistent with a recognition of B's title. Adverse 
 possession depends upon the intention with which it is 
 taken and held. Where there is an unintentional en- 
 croachment on the land of another, as where a man think- 
 ing he is building on his own line by mistake puts part
 
 244 ELEMENTARY LAW [§ 398 
 
 of the structure over the hne, such possession is not ad- 
 verse. The possession must be hostile or adverse, actual, 
 visible, notorious, exclusive, continuous and under claim 
 of title. 
 
 § 398. Occupying claimant. — It sometimes happens 
 that one has a claim of title, and thinking it good enters 
 upon land of another and makes valuable improvements 
 on it. In such a case the occupant may, under the 
 occupying claimant's statutes, which have been enacted in 
 most of the states, file his complaint and have his im- 
 provements and the land appraised separately, and the 
 owner is then given the option to take possession upon 
 his paying the claimant the appraised value of the 
 improvements and the taxes paid, with interest, deducting 
 the value of the rents and profits and the damages 
 assessed against the occupant for waste or other causes. 
 If the owner fails to make his election, the occupant may 
 remain in possession upon paying the value of the land 
 aside from the improvements. This is not a common-law 
 right, but is purely statutory. 
 
 § 399. Title by marriage. — Title by marriage or by 
 dower and curtesy we have already considered. 
 
 § 400. Title by descent. — Where a man dies intes- 
 tate being the owner of lands, the law disposes of the 
 property by transferring the title to those who by virtue 
 of the law of the place where the land lies are his heirs. 
 The title the heirs take is a title by descent, and the per- 
 son from whom the estate descends is called in law the 
 ancestor. The statutes of descent vary in the different 
 states according to the wishes of the citizens as expressed 
 in legislation, as in some states, where those of the whole 
 blood of the ancestor are preferred to those of the half-
 
 § 401] TITI^E TO RE,Ah PROPE;rTY, HOW ACQUIRED 245 
 
 blood, etc. Those who take land by descent take it 
 charged with its burdens ; these may be in the form of 
 mortgage or other lien created by the ancestor, or in 
 the form of a general indebtedness, which, so far as it 
 is in excess of the personal estate of the ancestor, is a 
 charge upon the real estate. Personal property left by an 
 ancestor also descends to his heirs, but with this differ- 
 ence, the line of descent as to personal property is fixed 
 by the laws of the place where the ancestor resided at 
 the time of his death, not where he happened to be, but 
 the place of his fixed residence; while the line of descent 
 as to his land is governed by the law of the place where 
 it lies. Where heirs are of one class, as sons or 
 daughters, they take equally, share and share alike, but 
 if there are children and grandchildren, the children take 
 a full share each, and each set of grandchildren take what 
 'their parent would have taken if living. But in some 
 states, as in Indiana, if there are grandchildren only left 
 as heirs, the estate is divided equally amongst them all. 
 Illegitimate children may inherit from their mothers 
 alone, unless by adoption, according to rules prescribed 
 for such proceedings, they are legitimized by the father. 
 This is not the place to give the rules of descent as 
 they prevail in all the states. It is believed, however, 
 that the following are of general application. Where 
 heirs take by descent, they take as tenants in common. 
 Posthumous children may inherit. Bastards may inherit 
 from and transmit inheritance to the mother. Children 
 born before marriage and acknowledged after are legiti- 
 mate and may inherit. Males are not preferred to 
 females. 
 
 § 401. Title by devise. — Title by devise is where 
 the ownership of land is transferred by will. Such a 
 transfer of land is called a devise. The person who takes
 
 246 ELEMENTARY EAW [§ 402 
 
 it is a devisee. The person who dies and leaves a will is 
 a testator, and the person named in the will and charged 
 with the duty of carrying out its provisions is an 
 executor. 
 
 § 402. Wills. — Wills are of great antiquity, and it 
 is said by some writers that it is impossible to find evi- 
 dence of any time in human history when they did not 
 exist in some form, though Sir Henry Maine maintains 
 that they probably did not exist among the barbarians 
 before their invasion of the Roman Empire. He further 
 says that to the Romans belongs pre-eminently the credit 
 of inventing the modern will, the institution of which, 
 next to the contract, has exercised the greatest influence 
 in transforming human society. 
 
 § 403. Capacity to make wills — Written wills. — 
 There is no general law of the United States on the 
 subject of wills, each state having its own laws as they 
 find expression in the decisions of the state courts, or in 
 statutory enactments. Who may make a will is the first 
 question. Generally all persons of full age and sound 
 mind are capable, though in some states married women 
 are deprived of the right. The capacity to make a will 
 must exist when it is made, and subsequent incapacity 
 will not invalidate it. Whether the testator possessed the 
 requisite capacity is a question of fact for the jury; the 
 interpretation of the will, the power to declare its mean- 
 ing, is for the court. Ordinarily, a will must be reduced 
 to writing and must be subscribed by the testator in the 
 presence of attesting witnesses, who shall also subscribe 
 the same in the testator's presence and at his request. 
 Nuncupative or verbal wills may be made by which per- 
 sonal property can be disposed of. and the manner of 
 making and proving such wills, as well as the amount of
 
 § 404] TITLE TO REAL PROPERTY, HOW ACQUIRED 247 
 
 property so disposable, is controlled by statute. After a 
 will is made, it is common for the testator to add to the 
 original will certain modifications of it. These must be 
 reduced to writing, and be attested in like manner as the 
 original will. Such modifications are called codicils. 
 
 § 404. Revocation of wills. — A will may be revoked 
 in several ways. The making of a new will revokes all 
 prior wills. The testator may revoke his will by mutilat- 
 ing or destroying it with the intent to revoke it, or such 
 mutilation or destruction may be done by any one at the 
 request of the testator. The subsequent sale of land 
 devised by a will revokes the will as to that land. The 
 testator may revoke the will by a writing, subscribed and 
 attested like a will, in which his intention to revoke it 
 is clearly expressed. A will is sometimes revoked by 
 operation of law, as when a child, unprovided for in the 
 will, is subsequently born. 
 
 Wills relating to land must be executed and attested 
 according to the forms required by the law of the place 
 where the land lies. Wills disposing of personal property 
 must be executed according to the laws of the place where 
 the testator resided at the time of his death. The provi- 
 sions of wills executed and proved in a foreign country 
 or another state may be enforced wherever property is 
 found belonging to the testator, and disposed of by the 
 will, upon producing and placing of record a copy of 
 the will and a duly certified copy of the proceedings by 
 which the will was admitted to probate. The methods 
 of proving and enforcing the provisions of such wills 
 are regulated by statute. 
 
 A will may be set aside in a suit brought for that 
 purpose by any party in interest, when it is proved that 
 the will was unduly executed, that its execution was pro-
 
 248 e;i<e;me;ntary law [§ 405 
 
 cured by fraud or duress, or that the testator did not 
 possess the legal capacity to make a will. 
 
 § 405. Title by purchase. — The cumbersome meth- 
 ods of transferring title to real estate which were cus- 
 tomary under the common law of England have never 
 prevailed in this country, though in some localities there 
 are useless intricacies and mysteries. Since real estate 
 has become a commodity, and has lost in public estima- 
 tion much of that fictitious dignity with which it was 
 clothed by the common law, the forms of buying and 
 selling and conveying it have been much simplified. 
 Title bonds, quitclaim and warranty deeds are about the 
 only instruments necessary to carry out the intention of 
 the parties. A title bond is an agreement signed by the 
 seller agreeing to convey to the buyer, for a stipulated 
 price to be paid, certain land described in the instrument. 
 A quitclaim deed is a form of conveyance in which the 
 grantor conveys to the grantee, his heirs and assigns, 
 all the grantor's present interest in land. A warranty 
 deed is a form of conveyance by which the grantor con- 
 veys land to the grantee, his heirs and assigns, with an 
 agreement expressed in the deed that the grantor will 
 warrant and defend the title against all persons, and 
 against all incumbrances. The form may be varied when 
 the warranty is not general, but special, and where cer- 
 tain incumbrances are assumed by the grantee. By spe- 
 cial clauses incorporated in the deed the exact meaning 
 of the parties as to what interest is conveyed and what 
 liens are assumed may be expressed. To make a deed ef- 
 fective to pass title, it must be executed in due form and 
 be delivered to the grantee, or to some one for him. To 
 make the delivery efiFective the grantor must relinquish 
 all control over the instrument. If, after it is executed, 
 it is put in the hands of a third person, to be by him
 
 § 408] TITL,E TO REAL PROPERTY, HOW ACQUIRED 249 
 
 delivered upon the performance of some act or the hap- 
 pening of some contingency, the instrument is, until the 
 act is performed or the contingency happens, an escrow 
 and not a deed. 
 
 § 406. Title bond. — The title bond, as we have seen, 
 is a sale of land with an agreement to convey. It must 
 be in writing because by the statute of frauds no action 
 can be maintained on an agreement for the sale of lands 
 or any interest therein, unless the agreement, or some 
 memorandum thereof, is in writing, and signed by the 
 person to be charged thereby, 6r by some one authorized 
 to sign it for him. Such a bond only gives an equitable 
 estate, even where the purchase-money is all paid, but 
 a court of equity upon proof of payment will compel the 
 seller to make a deed according to his agreement, and 
 the same relief will be given against the heirs of the 
 seller. 
 
 § 407. Deeds by owners not in possession. — At 
 
 common law the conveyance of land, which at the time 
 of the conveyance was in the adverse possession of 
 another, was void, but this rule of the common law has 
 been abrogated by the laws of many states, although in 
 some of them it is still recognized. The reason for the 
 rule was that the right to make such conveyances tended to 
 encourage litigation, and because, as Coke says, "under 
 color thereof pretended titles might be granted to great 
 men, whereby right might be trodden down and the 
 weak oppressed." Conveyances of land pending suit in- 
 volving the title thereto are void, except in states where 
 by statutory enactment they are recognized as valid. 
 
 § 408. Forms of deeds. — What form is necessary 
 and what formalities in its execution are requisite to give
 
 250 ELEMENTARY LAW [§ 409 
 
 validity to a deed, depend upon the statutes of the state 
 where the land lies. 
 
 § 409. Registration of deeds. — A deed after its exe- 
 cution and delivery should be recorded promptly. A delay 
 in recording it beyond the time fixed by statute will make 
 the deed void as to subsequent purchasers in good faith 
 without notice of the existence of the unrecorded deed. 
 All sales of interests in land, except leases for short 
 terms specified by statute, must be in writing and should 
 be recorded. To entitle such instruments to be recorded, 
 they must be acknowledged before some officer authorized 
 to take such acknowledgment. 
 
 § 410. Parties to deeds. — The parties to a deed, es- 
 pecially the grantors, must be capable under the law of 
 making such contracts. If it is intended to convey the 
 interest of the husband and to bar the wife's right of 
 dower, she must join in the deed with her husband, and 
 under the laws of some of the states she must be exam- 
 ined by the officer taking the acknowledgment, separate 
 and apart from her husband, to see that her uniting in 
 the deed is her free and voluntary act. A husband may 
 execute a valid conveyance of his lands without his wife 
 joining in the deed, but the grantee takes subject to the 
 wife's right of dower, and if she survives her husband, 
 she can have her dower assigned to her out of the land. 
 A wife's deed of her own land, without her husband 
 joining, is, in most states, void. 
 
 §411. Deeds by officers. — Sheriffs, master commis- 
 sioners and others appointed by the court, in making 
 deeds should strictly jmrsue the statute and the decrees 
 of the court authorizing the conveyance. A sheriff's deed 
 executed according to law need not be submitted to the
 
 § 413] TITLE TO REAIv TROPERTY, HOW ACQUIRED 251 
 
 court for its approval, but commissioners, guardians, 
 executors and others who make what are called judicial 
 sales, should report them to the court with a form of 
 conveyance for the approval of the court. Lands are 
 conveyed by auditors or other officers where they have 
 been sold for delinquent taxes. Titles acquired by means 
 of tax sales are, if not regarded with suspicion, carefully 
 scrutinized, and any irregularity in the levy of taxes or 
 sale will vitiate the deed. 
 
 § 412. Description of land conveyed. — The land 
 should be so described in a deed or agreement for sale 
 that a stranger, without the aid of outside evidence, can 
 go upon the premises and identify it. In states where 
 the public lands have been surveyed in sections and sec- 
 tional subdivisions, it is sufficient to describe the land as 
 
 being section No. — , township — , range — , in 
 
 county and state. Where the land is described 
 
 by metes and bounds the lines, courses, corners and 
 distances should be accurately followed. 
 
 § 413. Title by eminent domain. — All private own- 
 ership of land is held subject to the state in which it lies, 
 and there resides in the state the power to resume pos- 
 session and ownership of it, whenever the public good 
 requires it. This power has its limits fixed by the Con- 
 stitutions of the United States and of the several states, 
 which provide that private property shall not be taken for 
 public use without just compensation. Where it is desired 
 to appropriate land for the purpose of establishing navy 
 yards, arsenals, or for sites for post office buildings, 
 custom-houses and the like, the government, if it can not 
 secure desirable property by purchase, institutes by its 
 proper officers proceedings in the proper courts within 
 whose jurisdiction the land lies, to have the value of the
 
 252 e;i.e;mentary law [§ 413 
 
 land ascertained. Upon payment of the amount so ascer- 
 tained, the title vests in the government. This right to 
 appropriate private property for the pubhc use is called 
 the right of eminent domain. 
 
 This right of eminent domain is exercised in another 
 way when private individuals for their own profit embark 
 in enterprises which perform some public service. It can 
 only be exercised where the property is taken for a public 
 use, and where the property condemned is necessary to 
 enable the public use to be carried into effect. It is also 
 a condition that compensation must be made to the owner, 
 and it is generally held that payment must be made before 
 entry. Cities and towns take property for streets and 
 parks; railroad, turnpike, telegraph, telephone, canal, 
 ferry, gas, water and irrigation companies, condemn land 
 for right of way, and exercise this right when authorized 
 to do so by the legislature, with whom rests the power 
 to determine the manner in which, and purposes for 
 which, it may be exercised. 
 
 The proceedings by which property may be taken and 
 appropriated for the purposes named in the preceding 
 section are regulated by statute, and in this matter there 
 is substantial uniformity in the l-aws of the several states. 
 The corporation desiring to exercise the right may file 
 in the proper court an instrument of appropriation, setting 
 forth the uses to which the property is to be devoted, 
 giving an accurate description of the property intended to 
 be appropriated, and setting out the names of the owners 
 and persons interested in it. The proceedings may be 
 summary, as in some states, where the law does not give 
 the right of trial by jury, or they may be in tlie form 
 of a civil action, in which the right to a trial by jury is 
 given. Proceedings in the exercise of the riglit of eminent 
 domain are not "suits at common law," for which "the
 
 § 415] title: to REAlv rROPERTV, HOW ACQUIRED 253 
 
 right of trial by jury shall be preserved," as required by 
 the constitution. In either case the jury or commission- 
 ers selected hear evidence, view the premises and report 
 to the court their finding as to the amount of damages 
 to be paid to the landowners. When the report is con- 
 firmed by the court, the party seeking the appropriation 
 may pay the money into court, and enter upon the prop- 
 erty. If either party is dissatisfied with the report, an 
 appeal may usually be taken from the award. As the 
 proceedings are purely statutory, the provisions of the 
 statute regulating them must be strictly followed. Judg- 
 ments in such cases have the same binding effect as ordi- 
 nary judgments, and they can not be collaterally im- 
 peached. 
 
 § 414. Title by escheat. — Where a person died in- 
 testate in England without lawful heirs the title to his 
 real property went back to the original grantor, or lord 
 of the fee, from whom it proceeded. In this country 
 when a man dies intestate and without heirs, the title 
 to his real property reverts or escheats to the people, as 
 forming a part of the common stock of the community, 
 it being a fundamental principle that, if the ownership of 
 property becomes vacant, the right must necessarily sub- 
 side into the whole community in whom it was vested at 
 the origin of society. This rule, which formerly applied 
 to real property only, is extended by the laws of most of 
 the states to personal property. 
 
 §415. Title by forfeiture. — Title by forfeiture is 
 a title which the state acquires to the property of a felon 
 who, with his heirs, devisees and legatees, are deprived 
 of it on account of, and as a punishment for, high 
 crimes. Such forfeitures are by the constitutions of many
 
 254 ELEMENTARY LAW [§ ^15 
 
 states prohibited. Conditional estates in chattels and real 
 property may be forfeited by breach of conditions, and 
 the misuse of a chattel by a person having a qualified 
 interest therein will sometimes determine his estate in 
 favor of the absolute owner.
 
 CHAPTER XXIX 
 
 PERSONAL PROPERTY 
 
 Sec. Sec. 
 
 416. Definitron. 418. Burial rights. 
 
 417. Title to — How acquired. 
 
 § 416. Definition. — Personal property embraces all 
 objects and rights which are capable of ownership, except 
 real estate or some interest therein. 
 
 §417. Title to — How acquired. — The title to per- 
 sonal property may be acquired in various ways. (1) By 
 occupancy, as where one finds or takes possession of an 
 article which has no owner or which has been abandoned, 
 or where one captures wild animals, or fish, or finds a 
 jewel to which no one claims title. (2) By increase or 
 accession, as where one owns animals who have young. 
 (3) By confusion, as where one has goods or property, 
 like wheat, and some one wrongfully mixes his property 
 of the same kind with it, so that it can not be distin- 
 guished and separated. (4) By gift, as where the owner 
 of an article delivers it to one with the intent to pass 
 the title to the donee. (5) By a written transfer describ- 
 ing the property and the person to whom it is transferred. 
 (6) By sale of the owner, with or without delivery of 
 possession. (7) By succession or descent from one who 
 dies intestate. (8) By bequest contained in a will. (9) 
 By operation of law or judgment, as where one is sued 
 for the conversion of another's property and judgment is 
 rendered against the defendant for its value; in such 
 cases, upon payment or satisfaction of the judgment so 
 
 265
 
 256 E;i,E:MENTARy LAW [§ 418 
 
 rendered the title to the property vests in the defendant. 
 So the title to the personal property of one dying testate 
 or intestate vests in the executor or administrator by 
 mere force of law. So a qualified title to the personal 
 property of a ward vests in the guardian, and the as- 
 signee of a bankrupt and a receiver appointed by the court 
 have a title to the goods which come to their possession 
 in the administration of these trusts. (10) Title to per- 
 sonal property may be acquired also by purchase at a 
 sale by an executor, administrator, guardian, assignee in 
 bankruptcy, trustee, sheriff or other officer who, by 
 law or the decree of a court, has authority to make 
 such sale. 
 
 § 418. Burial rights. — At common law there could 
 be no ownership of the bodies of the dead, but in some 
 states the law has been modified and some of the rules 
 of property have been applied. In such states the bodies 
 belong to the surviving relatives in the order of inher- 
 itance, and they have the right to control the disposition 
 thereof. There would be a right of action against one 
 who robs the grave or desecrates the body. The real 
 injury in such case would not be to the grave or body, 
 but to the feelings of the survivors, and the law recog- 
 nizes such injury as a legitimate basis for recovery of 
 damages.
 
 CHAPTER XXX 
 
 DECEDENTS' ESTATES 
 
 Sec. Sec. 
 
 419. Testator and intestate. 421. Administrator. 
 
 420. Statutes of descent and 422. Executor. 
 
 distribution. 
 
 § 419. Testator and intestate. — A person dying 
 without making a will is called an intestate, and one 
 who makes and leaves a will is called a testator. 
 
 § 420, Statutes of descent and distribution. — The 
 personal property of an intestate is distributed to his 
 heirs, according to the statutes of the states where the 
 intestate lived at the time of his death, and his real 
 estate descends to his heirs, according to the laws of 
 the place where the real estate was situated. 
 
 § 421. Administrator. — Upon the death of an in- 
 testate, an administrator is appointed, whose duty it is to 
 take possession of all the personal property, convert it 
 into money, pay the debts, and to distribute what remains 
 amongst the heirs. The administrator has no right to 
 meddle with the real estate of the decedent, unless the 
 proceeds of the personal estate should prove insufficient 
 to discharge the debts, in which case, upon proper applica- 
 tion to the court having probate jurisdiction, he will be 
 authorized to sell under the direction of the court so 
 much of the real estate as will discharge the debts. The 
 right to administer is generally first in the surviving 
 husband or wife, next in the children, according to age 
 and capacity, next to the largest creditor, and if none 
 of them desire to accept the trust, the court will appoint 
 17— Elem. Law. 257
 
 258 ELKMENTARY LAW [§ 422 
 
 some competent person. When appointed, the administra- 
 tor is required to take an oath and give a bond for the 
 faithful performance of the duties of his trust. He is at 
 all times under the direction and control of the court, to 
 whom he is required to report all his doings in the man- 
 agement of the property which comes to his hands. 
 When he is ready to close the estate, he files his final 
 accounts, and if no objections are made by the parties 
 in interest, he is discharged. If an administrator dies, re- 
 signs or is removed, the court appoints a successor, who 
 is called an administrator de bonis non, and his duty is, 
 as the name implies, to administer so much of the estate 
 as was left unsettled by his predecessor. The authority 
 issued by the court under its seal to an administrator is 
 called letters of administration. 
 
 § 422. Executor. — An executor named in a will is 
 the person appointed by the testator to carry out his pur- 
 pose as expressed in the will. It is usual for the executor 
 to give bond and take an oath, though the giving of the 
 bond is sometimes dispensed with where the testator in 
 his will indicates a desire to tliat effect, and no objection 
 is made by the parties in interest. The authority issued 
 to an executor is called letters testamentary. It is the 
 duty of the executor to carry out the wishes of the 
 testator in the distribution of such articles of personal 
 property as are disposed of by the will. The gift of per- 
 sonal property by will is termed a bequest or legacy, and 
 the person to whom it is given is called a legatee ; the 
 gift of real property by will is termed a devise and the 
 person receiving it is termed a devisee. If the executor 
 has cause to fear that the property of the testator will 
 not be sufficient to discharge the debts of the estate and 
 to pay the legacies, he may require the legatee to give 
 bond that, in case such def7ciency should occur, he will
 
 § 422] decedents' estates 259 
 
 refund to the estate so much as may be necessary to pay 
 his share of such deficiency. The devisees take the real 
 estate according to tlie terms of the will as soon as the 
 will is admitted to probate, subject to the debts remain- 
 ing after the personal estate is exhausted. The executor, 
 as the administrator, does not meddle with the real estate 
 of the testator unless it is shown to the court that it is 
 necessary to sell a portion of it to pay debts. The 
 reports and accounts of the executor are made and dis- 
 posed of in the same way as the reports and accounts 
 of the administrator. If the person named as executor 
 renounces the trust the court appoints an administrator 
 as in the case of an intestate, and the administrator is 
 called administrator with the will annexed, and if this 
 administrator dies, resigns or is removed, a successor is 
 appointed who is called an administrator de bonis non 
 with the will annexed. Executors and administrators re- 
 ceive such compensation as the court may allow, or as 
 may be provided for in the will.
 
 PART V 
 
 THE LAW OF CONTRACTS 
 CHAPTER XXXI 
 
 DEFINITION, CLASSIFICATION AND VALIDITY OF 
 
 CONTRACTS 
 
 Sec. 
 
 
 Sec, 
 
 423. 
 
 The law of contracts. 
 
 435. 
 
 424. 
 
 Growth of right to con- 
 
 
 
 tract. 
 
 436. 
 
 425. 
 
 Contract defined. 
 
 
 426. 
 
 Contracts are executory 
 or executed. 
 
 437. 
 
 427. 
 
 Written contracts. 
 
 438. 
 
 428. 
 
 Parol contracts. 
 
 
 429. 
 
 Express contracts. 
 
 
 430. 
 
 Implied contracts. 
 
 439. 
 
 43L 
 
 Quasi contracts. 
 
 
 432. 
 
 Contracts of record. 
 
 440. 
 
 433. 
 
 Offer and acceptance. 
 
 
 434. 
 
 Time of contract. 
 
 
 Legality of object of con- 
 tract. 
 
 Reality of consent — Mis- 
 take. 
 
 Reality of consent — Fraud 
 and misrepresentation. 
 
 Reality of consent — Du- 
 ress and undue influ- 
 ence. 
 
 Void and voidable con- 
 tracts. 
 
 Interpretation of con- 
 tracts. 
 
 § 423. The law of contracts. — This branch of the 
 law is concerned with the formation, operation, interpreta- 
 tion and discharge of contracts. So much of our modern 
 economic life is dependent upon contractual obligations 
 that it has become necessary to give them a definite legal 
 status in order to make possible their consistent enforce- 
 ment through the courts of the state. In making con- 
 tracts individuals do not always contemplate all the pos- 
 sible emergencies nor do they always have the same con- 
 ception as to the meaning of all the terms of the agree- 
 
 260
 
 § 424] DEFINITION AND VALIDITY OF CONTRACTS 261 
 
 ment. In enforcing them, therefore, the courts must lay 
 down rules to meet such emergencies. For example, A 
 contracts with B for the rent of his house for the month 
 of July, the contract being made June fifteenth. On June 
 thirtieth the house burns down, an emergency probably 
 not contemplated by the parties. Can A sue B for failure 
 to rent the house? If contracts are to be made an efficient 
 instrument of modern industry and commerce, the 
 courts must adopt rules that will provide a definite and 
 uniform solution for this and similar problems. 
 
 Again there are certain contracts which under an 
 enlightened policy of justice and fairness ought not to be 
 enforced, as contracts secured by fraud or duress, and 
 consequently rules must be laid down so governing the 
 subject of contracts as to prevent them from being made 
 instruments of fraud and oppression. 
 
 § 424. Growth of right to contract. — In primitive 
 societies, and under the ancient laws, the rights and 
 liabilities of persons, so far as they had rights and 
 liabilities, were largely fixed and determined by their 
 stations in life, whether as lord or vassal, husband or 
 wife, parent or child, master or slave. The individual, 
 unless he were lord, master or head of a family, had little 
 or no voice in fixing his rights and obligations. Status, 
 a word which is used to designate the personal condition 
 of the individual under these old laws, has been gradual- 
 ly succeeded and almost supplanted by conditions which 
 are the immediate or remote result of agreement, and the 
 great movement of the progress in society has been a 
 movement from status to contract. Societies are civilized 
 and progressive to the extent that the individual can for 
 himself establish such relations as he chooses, work for 
 whom he pleases, and for. what he pleases, buy and sell 
 what and where he can, having no superior to control
 
 262 ELEMENTARY I,AW [§ 425 
 
 bis will or direct his action, except so far as the necessary 
 restraints of public law impose limits upon such action. 
 
 A large portion of the field of jurisprudence is 
 devoted to the subject of contracts. Contracts from their 
 very nature imply that men are disposed in good faith 
 to keep agreements which they have entered into volun- 
 tarily. And the multiplication of the different forms of 
 contract indicates in a marked manner how the confidence 
 and faith of man in his fellow man have increased. 
 Society is shocked by the great frauds which are some- 
 times perpetrated by cunning and powerful men, but the 
 great current of commercial and business life is pure. 
 Men as a rule are faithful in the performance of their 
 agreements. Where men from an honest misunderstand- 
 ing as to their rights under their contracts or from a 
 dishonest motive to evade them disagree, the aid of the 
 law is invoked to settle the controversy. Some idea of the 
 immense stride society has made may be formed from the 
 language of Sir Henry Maine, who says, "The only form 
 of dishonesty treated of in the most ancient Roman law is 
 theft. At the moment at which I write (1861) the new- 
 est chapter in the English criminal law is one which at- 
 tempts to prescribe punishment for the frauds of 
 trustees." 
 
 The whole of our modern economic life is based 
 upon contractual obligations. The commerce of the 
 seas, the division of labor necessary to industrial effici- 
 ency, in fact the whole fabric of the world's business is 
 grounded upon the binding obligations of legal agree- 
 ments. 
 
 § 425. Contract defined. — First, what constitutes a 
 contract? Blackstone's definition is as follows: "A con- 
 tract is an agreement upon sufficient consideration to do 
 or not to do a particular thing," which is concise and
 
 § 427] DEFINITION AND VALIDITY OF CONTRACTS 263 
 
 comprehensive. Judge Metcalf preferred the definition 
 of Chief Justice Marshall, as it is given in Sttirges v. 
 Crowningshield, 4 Wheat. (U. S.') 197. It is in these 
 words : "A contract is an agreement in which ~a party 
 undertakes to do or not to do a particular thing." In 
 this definition the element of consideration is omitted. 
 The efforts to improve upon these definitions by later 
 learned writers show a great deal of ingenuity and a 
 large command of words, but it is questionable whether 
 their efforts to make things clear have not tended rather 
 to darken counsel. For the student who is trying to 
 master the elementary principles of the law, the defini- 
 tions of Blackstone and Marshall will be quite sufficient. 
 Chancellor Kent approved Blackstone's definition sub- 
 stantially as we have given it. 
 
 § 426. Contracts are executory or executed. — A 
 
 contract to do a thing, followed by immediate perform- 
 ance, is executed; a contract to do something in the 
 future where instant performance is not expected is 
 executory. If one fails to perform an executory con- 
 tract, performance may be enforced or damages given to 
 the injured party for nonperformance. 
 
 § 427. Written contracts. — A written contract is an 
 instrument fixing the rights and obligations of the con- 
 tracting parties, concerning the subject-matter of the con- 
 tract, and signed by them or one of them. It is suffici- 
 ent if it be signed by one and accepted by the other. 
 The party accepting a written agreement is bound by all 
 its stipulations for and against him. For instance, where 
 a deed is delivered by the grantor and accepted by the 
 grantee, the grantee does not sign the deed, but if it 
 contains covenants which are to be performed by him, 
 as for the payment of an encumbrance or the like, he is
 
 264 ELEMENTARY LAW [§ 428 
 
 bound to perform the covenant as much as if he had 
 signed the deed. A written contract may consist of let- 
 ters or telegrams. It may be written upon several papers 
 at the same time, and if these several papers relate to the 
 subject-matter of the agreement they will be taken as a 
 part of it. 
 
 § 428. Parol contracts. — A parol contract is where 
 the agreement of the parties rests in spoken words only, 
 or partly in writing and partly in spoken words. Parol 
 contracts are valid and enforcible, except where by 
 express law they are required to be in writing. By the 
 rules of common law all contracts not under seal were 
 called simple or parol contracts. But the rules which 
 grave a hisfher dignitv to contracts under seal have been 
 virtually abrogated in this countiy by usage and by 
 statutes. In most of the states the use of seals is now 
 regulated by statute, the effect of which has been to 
 modify or entirely change the common-law usage in 
 regrard to seals. In some instances the distinction between 
 sealed and unsealed instruments is done away with in 
 terms, while in others the same result is accomplished by 
 abolishing the use of seals except by public officials and 
 corporations. 
 
 § 429. Express contracts. — An express contract is 
 one in which the meaning is stated in plain words which 
 are mutually understood by the parties in the same way. 
 
 § 430. Implied contracts. — An implied contract is 
 one in which the conduct of the parties is such that the 
 jury may infer that the parties did' intend to make a 
 contract. Where a customer takes up a merchant's goods 
 there is an implied contract on the part of the customer 
 to pay to the merchant the reasonable value of the goods.
 
 § 433] DEFINITION AND VALIDITY OF CONTRACTS 265 
 
 and where a master takes a servant into his employ there 
 is an imphed contract on the part of the employer to 
 pay the employe the reasonable value of his labor. If 
 parties have an accounting, and have agreed upon the 
 balance due, there is an implied contract that the debtor 
 will pay the balance. So there is an implied contract by 
 the borrower to repay borrowed money. 
 
 §431. Quasi contracts. — There is a class of cases 
 in which the law implies a contract obligation, regardless 
 of the intention of the parties. Thus, where one pro- 
 cures the goods or money of another, through fraud or 
 mistake, the law implies an obligation to return or pay. 
 These are sometimes called quasi contracts. 
 
 § 432. Contracts of record. — Where a judgment is 
 entered in a court of record, it is called a contract of 
 record, on the theory that every man agrees to obey the 
 laws of the land, and where he is adjudged to owe a 
 sum of money by the law there is an implied promise on 
 his part to pay it. Where a man appears in court, and 
 either on his own behalf or as surety for another, enters 
 into a recognizance conditioned for the payment of a 
 sum of money, in case of the failure of himself or his 
 principal to appear in court at a time named, it is a 
 contract of record. Infants may enter into recognizances 
 which will be binding on them and their estates. 
 
 § 433. Offer and acceptance. — Contracts are made 
 through some form of offer and acceptance. The offer 
 and acceptance may be spoken, written or implied from 
 the actions of the parties. An offer is an expression of 
 willingness to enter into an agreement according to the 
 terms indicated by the offerer. The offer may be made 
 to a particular person in which case that person alone
 
 266 ELEMENTARY LAW [§ 434 
 
 may accept it, or it may be made to the world and 
 accepted by any one who can comply with its terms. An 
 offer to pay ten dollars for any one returning a certain 
 lost watch is an offer to the world and any one finding 
 the watch and returning it with knowledge of the offer 
 has accepted it, and is therefore entitled to the ten 
 dollars. Any one to whom an oft'er is directed and who 
 receives the offer enters into a binding contract by accept- 
 ing it. The acceptance, however, must be complete and 
 in the terms of the offer. Thus if A offers to sell to B 
 one hundred pounds of sugar at six cents per pound and 
 B says that he will take fifty pounds of sugar at six 
 cents per pound, there is no contract for the acceptance 
 does not comply with the terms of the offer. 
 
 An offer may be revoked at any time if notice of the 
 revocation is given to the offeree before acceptance. If 
 an offer is not accepted within a reasonable time it 
 lapses without express revocation. Mental determination 
 to accept an offer is not sufficient for the acceptance 
 must be unequivocally indicated, either by express words 
 or appropriate action. 
 
 The offer may be of a promise, as where A offers to 
 pay B a certain sum of money in ninety days if B will 
 deliver to A certain chattels. Or the offer may be of an 
 act, as where B offers to deliver to A certain chattels in 
 return for the promise of A to pay certain moneys in 
 ninety days. In the first example there is an offer of 
 a promise to be accepted by an act, and in the second 
 case there is an offer of an act to be accepted by a 
 promise. There may also be an offer of a promise to be 
 accepted by a promise, as where A offers to promise to 
 pay B certain moneys in ninety days, if B will promise 
 to deliver certain chattels in sixty days. 
 
 § 434. Time and place of contract. — Questions arise
 
 § 435] DEFINITION AND VALIDITY OF CONTRACTS 267 
 
 as to the particular time and place that the agreement 
 is to be considered as closed, and the rights and obliga- 
 tions of the parties fixed. The general rule is that 
 whenever and wherever the minds of the parties meet 
 in agreement as to all the particulars of the transaction, 
 the contract is made and binding. The contract is com- 
 pleted by the acceptance of an ofYer and the time and 
 place of acceptance is the time and place of the contract. 
 Where a letter containing an offer is transmitted by 
 mail, and an answer accepting the offer in its precise 
 terms is mailed also, the contract is closed and the 
 rights of the parties fixed, at the time and place the 
 letter of acceptance, properly stamped and addressed, 
 is deposited in the post of!ice. 
 
 § 435. Legality of object of contract. — Since the 
 courts do not favor illegal or immoral acts they will not 
 enforce contracts which are prohibited by law or which 
 contribute to specific acts prohibited by law, but will hold 
 them null and void. They will also hold void contracts 
 which they have determined to be contrary to public 
 policy. In many states gambling contracts are express- 
 ly prohibited by law and consequently the courts will 
 determine such contracts to be void. Where the law 
 prohibits a specific act, as the doing of business on Sun- 
 day, and one contracts with another to publish advertis- 
 ing in a Sunday paper, the contract will be held void as 
 contributing to an illegal end. 
 
 There are many examples of contracts which are void 
 as being contrary to public policy. Contracts to commit 
 torts, to refrain from prosecuting criminals, to influence 
 legislation by lobbying, to interfere with the freedom or 
 security of marriage, to restrain unreasonably trade or 
 competition, or to engage in immoral practices are all
 
 268 KLEMENTARY LAW [§ 436 
 
 examples of contracts which the courts have held to be 
 void as contrary to public policy. 
 
 § 436. Reality of consent — Mistake. — In all con- 
 tracts, there must be an agreement of the minds of the 
 parties as to the subject-matter of the contract and as 
 to the obligations assumed by each party. If there is a 
 misunderstanding as to the thing contracted for, or as 
 to the time or place of performance, as to the price to be 
 paid, or any other essential matter, there is no agreement, 
 and consequently no binding contract. Thus, if A, hav- 
 ing in mind one of several horses in his field, says 
 to B, who has in mind another horse in the same field, 
 "I will sell you the horse for one hundred dollars," and 
 B says, "I will take it at that price," there is no con- 
 tract, for the minds of the parties have not met and 
 agreed upon the same thing. So, if A says, I will sell 
 an article, naming it, for one hundred and sixty-five 
 dollars, and B, supposing that the sum named was only 
 sixty-five dollars, agrees to pay it, it is plain that there 
 is no agreement. These are simple forms of illustration, 
 and they could be multiplied indefinitely. 
 
 § 437. Reality of consent — Fraud and misrepresen- 
 tation. — Where a person is induced to enter into a 
 contract through fraud there is then lacking that reality 
 of consent or actual agreement of the minds necessary 
 to a binding contract. Such contracts are voidable and 
 the defrauded party may take his choice and either avoid 
 the contract or abide by the contract and sue the wrong- 
 doer for damages in an action in tort for deceit. To 
 establish a case of fraud it must be shown that there was 
 a false representation of fact, made with a knowledge of 
 its falsity or with a reckless disregard of whether it was 
 false or true, that it was made with the intent that it 
 should be relied on, and that it actually did induce the
 
 § 438] di;finition and validity of contracts 269 
 
 other party to act upon it to his damage. Thus if A 
 induces B to purchase a horse from him through his 
 representations that the horse is capable of certain speed 
 and A knows that such is not the case and consequently 
 B pays more than the horse is worth, he may rescind the 
 contract and recover back his money, or he may if he 
 prefers keep the horse and sue A for damages for the 
 deceit. 
 
 If, however, A made the above misrepresentation 
 honestly and innocently, then B has no relief at law, 
 unless the representation was so made as to amount to 
 a warranty or a part of the contract, for the law affords 
 no relief in the case of mere innocent misrepresentation. 
 In such cases, however, equity will afford relief, and 
 innocent misrepresentation is a good defense to an action 
 for specific performance. In case the innocent misrepre- 
 sentation is so made as to make it a part of the contract 
 or a warranty then an action for damages for breach 
 thereof may be maintained at law. 
 
 § 438. Reali.ty of consent — Duress and undue influ- 
 ence. — Contracts made by persons under duress are 
 not binding. Duress exists where one by the unlawful 
 act of another is induced to make a contract or perform 
 some act under circumstances which deprive him of the 
 exercise of his free will. There may be duress of the 
 person, as by threats, imprisonment, or an exhibition of 
 apparently irresistible force, or of the goods, where one 
 is compelled to submit to an illegal exaction to obtain 
 possession of them. The imprisonment must be unlaw- 
 ful in itself, or if lawful it must be enforced in a cruel 
 and oppressive manner. The threat or threats must be 
 such as to excite fear of some grievous wrong, and such 
 as would overcome the will of a person of ordinary 
 courage. Where a contract is obtained by duress, it is
 
 270 EI^EMENTARY LAW [§ 439 
 
 incumbent upon the person who wishes to avoid the con- 
 tract on that account to proceed without delay. If after 
 the duress he does any act in ratification of the contract, 
 he is cut off from his defense. 
 
 "Undue influence may be defined as an undue and 
 unconscientious use of power, whereby the will of one 
 of the contracting parties is enthralled by the other. A 
 presumption of undue influence or of fraud will common- 
 ly arise where the parties stand in confidential relations 
 in which one naturally possesses an advantage over the 
 other, making it necessary for the parties seeking to hold 
 the benefit of the contract or conveyance to show perfect 
 fairness on his part and no abuse of power." Contracts 
 and conveyances between parent and child, guardian and 
 ward, and husband and wife are cases of this sort. If 
 the contract is secured through undue influence, it is 
 voidable. 
 
 § 439. Void and voidable contracts. — The terms 
 void and voidable are often confused. A contract is 
 void when its terms are so uncertain that it can not be 
 enforced, or where there is a total lack of capacity in one 
 or both of the parties, or where the contract is illegal, 
 being in contravention of some positive law forbidding 
 it; to these are to be added contracts to refrain from 
 doing what the law requires, contracts which are impos- 
 sible of performance, contracts based upon an immoral 
 consideration, and contracts contrary to public policy. 
 Contracts legal in part and illegal in part will be enforced 
 as to the legal part if it can be separated from the illegal ; 
 if not, the whole contract is void. Voidable contracts are 
 those which are procured by fraud or duress, or those 
 entered into by persons under disability, such as infants 
 and insane persons. Such contracts may be ratified, but
 
 § 440] DEFINITION AND VAUDITY 0I< CONTRACTS 271 
 
 contracts which are absolutely void are incapable of 
 ratification. 
 
 § 440. Interpretation of contracts. — Contracts are 
 to be interpreted according to the manifest intention of 
 the parties, words being taken in their popular sense. In 
 construing a written contract, if the language is ambigu- 
 ous, the whole instrument is to be considered with all the 
 circumstances surrounding the parties at the time n 
 was made. If the contract is expressed in such vague 
 and doubtful terms that the intention of the parties can 
 not be ascertained from reading it, it is void.
 
 CHAPTER XXXII 
 
 CAPACITY OF PARTIES TO CONTRACT 
 
 Sec. Sec. 
 
 441. Capacity of parties. 445. Ratification and disaffirm- 
 
 442. Who may make valid con- ance by infants. 
 
 tracts. 446. Fraud of infants. 
 
 443. Infants. 447. Insane persons. 
 
 444. Infant's contracts for 448. Drunkenness. 
 
 necessaries. 449. Married women. 
 
 § 441. Capacity of parties. — It is essential to the 
 validity of a contract that the parties should have the 
 capacity to contract; they must be of sound mind, of 
 adequate age and under no legal disability. The follow- 
 ing persons are incapacitated : Insane persons, drunkards, 
 infants, persons under duress and alien enemies during 
 war. In some of the states married women are still 
 incapacitated from making contracts, but these harsh rules 
 are yielding to the demands of an enlightened public 
 opinion, which insists upon enlarging the sphere of a 
 woman's rights and increasing her control over her own 
 property. 
 
 § 442. V/ho may make valid contracts. — Generally, 
 all persons and corporations not disqualified by law may 
 make valid contracts. And even infants and lunatics, 
 who are under a general disability to assume obligations 
 that may be enforced against them, may become bound to 
 pay for the necessaries of life which may be supplied 
 for their support. Sovereign states may enter contracts, 
 but such contracts can not be enforced against them by 
 suit without tlieir consent. Where one state of the 
 
 272
 
 § 443] CAPACITY OF PARTIES TO CONTRACT 273 
 
 Union has a claim against another state, it may sue 
 upon it in the Supreme Court of the United States, 
 which has excKisive jurisdiction of such controversies. 
 Foreign states may make contracts and enforce them by 
 suit in our courts. So ahens residing or trading here have 
 the same right to make contracts and sue upon them as 
 citizens, unless the right is restricted by treaty stipula- 
 tions between their government and ours; in some states, 
 however, they may not acquire title to land. An alien 
 enemy, that is, a citizen of a nation with which we are 
 at war, can make no contract or acquire any rights dur- 
 ing war, unless by treaty between the belligerent pow- 
 ers the right is given. He may be sued on existing con- 
 tracts, and unless a contract existing at the time of the 
 war is of such a character that it is continuing in its 
 nature and involves intercourse between the enemy 
 countries, war will not destroy it. Where persons en- 
 gaged in certain callings are required to have a license 
 to carry on their avocations, the statutes of some states 
 make their contracts void, unless they have such license. 
 
 § 443. Infants. — An infant is a person under twen- 
 ty-one years of age, and while under that age he can 
 make no binding contract except in the following cases, 
 that is: (1) For necessaries. (2) Contracts entered into 
 by authority of law, as in the case of a recognizance in 
 his own behalf. (3) Contracts created by law, as where 
 an infant marries he is bound to support his wife. His 
 other contracts are voidable; that is, the infant may 
 ratify, perform or repudiate them at his option. Ac- 
 cording to the weight of authority he is not even bound 
 by a contract under which he has received something 
 of value which he can not return. AVhere a father has 
 emancipated an infant by relinquishing his custody and 
 
 refusing to maintain him, the Infant may receive his 
 18 — Elem. Law-
 
 274 ELEMENTARY LAW [§ 444 
 
 own earnings, but it does not enlarge his capacity to 
 make contracts. 
 
 § 444. Infant's contracts for necessaries. — What are 
 the necessaries for the payment of which an infant may 
 bind himself by contract? They include clothing, food, 
 medical aid and education, and these must comport in 
 quantity and quality with the infant's station in life. If 
 he have a wife and children he is chargeable with neces- 
 saries supplied to them. An infant is not bound by the 
 terms of his contract to pay for necessaries beyond a 
 reasonable price for the articles. 
 
 If an infant were to buy a thing, not being a neces- 
 sary, he could not be compelled to pay for it, but hav- 
 ing paid for it he could not keep it and also recover 
 back the money. If he has put money into a partnership, 
 and has performed services in the business, he can not 
 on rescinding the agreement get back his money and pay 
 for his labor, too. The privilege of infancy is personal, 
 and can only be pleaded by the infant himself; except 
 that if he dies or becomes insane, his heirs, administra- 
 tor or guardian may avoid his contracts. 
 
 § 445. Ratification and disaffirmance by infants. — 
 
 An infant may disaffirm his contract during minority. If 
 he retains the thing contracted for after he arrives at 
 full age, it is a ratification of the contract. So, if he 
 conveys land after his majority, which he purchased dur- 
 ing his infancy, it is an affirmance. And if he has con- 
 veyed land during his infancy, and in his majority con- 
 veys the same land to another, the latter deed disaffirms 
 the former. Where he elects to disaffirm, he must dis- 
 affirm the whole contract. There can be no ratification 
 of a voidable contract during infancy, for the ratification 
 would be voidable. Retaining after he arrives at majority
 
 § 447] CAPACITY OF PARTIES TO CONTRACT 275 
 
 eitlier goods or land purchased during his infancy makes 
 the contract vaHd. Some states by their statutes require 
 that a bincHng ratification of a contract made by an 
 infant can only be made in writing. 
 
 § 446. Fraud of infants. — If an infant procures 
 goods of a tradesman on a false statement that he was 
 of age the goods can be reclaimed on the ground of 
 fraud. Sometimes courts of equity hold an infant to a 
 contract that he has entered into under a false pretense 
 as to his age. "The privilege of infancy is a shield for 
 his protection and is not to be used as a weapon of 
 injustice." 
 
 § 447. Insane persons. — As a rule, the contracts of 
 persons of unsound mind are not binding upon them. 
 Unsoundness of mind, as here considered, is such a lack 
 of mental capacity as totally unfits one for the care 
 of his own interests. Of persons of sound mind the law 
 takes no note of the grades of mental capacity between 
 the highest and the lowest. When, however, from disease 
 or any other cause the individual is or has become of 
 unsound mind, as above indicated, he will not be held to 
 his contracts, and those who deal with him do so at their 
 peril. One who has been put under guardianship as a 
 person of unsound mind is conclusively presumed to be 
 so, and his estate can only be lawfully dealt with by his 
 legally appointed guardian, who acts for him under the 
 direction of the court. As to a person who has not been 
 adjudged to be of unsound mind, the question of his 
 mental capacity, when it is in issue, is to be tried as any 
 other question of fact, the presumption in such cases 
 being that every person is sane until the contrary is 
 shown. It is not necessary here to go into a discussion 
 of the different forms of insanity. We are here con-
 
 276 ELEMENTARY LAW [§ 448 
 
 cerned only with that class of persons who in law are 
 considered to be incapable of making valid contracts. 
 Even a person of unsound mind may in exceptional cases, 
 as an infant may, make binding contracts, that is. for 
 necessaries suitable to his condition in life, and he will 
 be held to his contract where he has dealt with one who 
 in good faith supposes him to be sane, and has per- 
 formed the contract by paying the consideration to him, 
 if the consideration can not be restored. 
 
 § 448. Drunkenness. — Where a person is so drunk 
 at the time he makes a contract that he does not under- 
 stand what he is doing, such contract is voidable, and 
 may be repudiated or ratified by him when he becomes 
 sober. The same exceptions hold good here as in the 
 case of infants and persons of unsound mind. When a 
 man gets sober he can not hold on to the benefits of a 
 contract made when he was drunk, and repudiate the 
 contract also. A drunken man. as an infant and lunatic, 
 may make a valid contract for necessaries. Slight cir- 
 cumstances will be sufficient to ratify the contract of a 
 drunken man. A delay in disaffirming it if unreasonable, 
 or retaining the benefit after he becomes sober, will be 
 a suf^cient ratification. 
 
 § 449. Married women. — By the common law mar- 
 ried women could not make valid contracts. The exten- 
 sion of the rights of women in most of the states of the 
 Union has practically emancipated them from the re- 
 straints of the common law. In nearly all the states 
 they have the control and management of their separate 
 estates, and as to such matters the married woman is 
 put upon an equal footing with an unmarried woman, or 
 with her husband. Nearly every session of our state 
 legislatures witnesses some innovation upon the rules
 
 § 449] CAPACITY OF PARTIJJS TO CONTRACT 277 
 
 of law which have restrained her liberty in dealing with 
 her property. It would be impossible to attempt to 
 state here the extent or limitations upon the powers 
 of married women in the matter of contracts. To 
 ascertain what these are recourse must be had to the 
 statute laws of the several states.
 
 CHAPTER XXXIII 
 
 CONSIDERATION, DISCHARGE AND REMEDIES 
 
 Sec. 
 
 
 Sec. 
 
 450. 
 
 Definition. 
 
 456. 
 
 451. 
 
 Adequacy of considera- 
 
 
 
 tion. 
 
 457. 
 
 452. 
 
 Prior obligation as con- 
 sideration. 
 
 458. 
 
 453. 
 
 Promise to release debtor. 
 
 459. 
 
 454. 
 
 Disputed claims. 
 
 460. 
 
 455. 
 
 Impossible and illegal 
 consideration. 
 
 
 Executed and executory- 
 considerations. 
 
 Past consideration. 
 
 Failure and want of con- 
 sideration. 
 
 Discharge of contracts. 
 
 Remedies for breach of 
 contract. 
 
 § 450. Definition. — Consideration is something es- 
 teemed in law to be of value, in exchange for which 
 the promise in a contract is made. A promise will not 
 be enforced by the courts unless it is given in return 
 for a consideration. Merely gratuitous promises will not 
 be enforced. The law estimates values in money, and 
 the consideration must be something to which a jury 
 can attach a pecuniary value. Natural love and affection 
 named in a deed as a consideration will make the con- 
 veyance good, but a promise to convey, or a promise to 
 pay money in consideration of natural love and affection, 
 is not binding. As between the original parties to a 
 negotiable promissory note, or bill of exchange, a con- 
 sideration is necessary, but if the note or bill is purchased 
 in good faith, before it is due, by a third person, he can 
 enforce payment, although it was originally given without 
 consideration. 
 
 A good consideration is blood, natural affection and 
 the like. A valuable consideration is money, or some 
 commodity, or marriage. To-day the mere doing of an 
 
 278
 
 § 451] CONSIDERATION, DISCHARGE AND REMEDIES 279 
 
 act which one is not already legally bound to do is gen- 
 erally considered a good consideration regardless of its 
 value. 
 
 One who takes a deed based upon a good considera- 
 tion only takes the property subject to the rights of 
 creditors who may be injured thereby. A man may give 
 away his property if he retains sufficient to pay his exist- 
 ing debts. The maxim is that "a man must be just 
 before he is generous." 
 
 A mere moral obligation imposed by a sense of duty 
 will not make a promise binding. A promise to pay 
 money to another, prompted by motives of gratitude for 
 past favors, is not binding. But a moral obligation, sup- 
 ported by a past legal obligation, will support a promise 
 and make it binding. If a debt is barred by the statute 
 of limitations, or by a discharge in bankruptcy, and the 
 debtor makes a new promise to pay it, it is a good promise 
 for the reason that though there is no present legal obliga- 
 tion to pay there is a moral obligation, and when the 
 moral obligation rests upon what was a previous legal 
 obligation, it is a valuable consideration and will support 
 a promise. The better view, however, is to consider the 
 new promise as a mere waiver of the defense of the 
 statute of limitations or the discharge in bankruptcy, and 
 allow the plaintiff to recover on the original undertaking. 
 
 § 451. Adequacy of consideration. — The adequacy 
 of consideration is something that courts will not inquire 
 into except in cases of imposition or fraud. Parties capable 
 of contracting are left to make their own bargains, and 
 their mistaken estimates of values of things purchased or 
 received, will not be corrected. Where the inadequacy is 
 so gross as to shock the moral sense it will be proof of 
 fraud.
 
 280 ELEMENTARY LAW [§ 452 
 
 § 452. Prior obligation as consideration. — Where 
 the law has fixed the value of services to be performed, 
 as by naming fees for official services, a promise to pay 
 more is not binding. So, where one is already bound by 
 a previous agreement, or by law to do a particular thing, 
 the doing of the act is no consideration for a binding 
 promise. If one owes a sum of money and pays part, and 
 his creditor agrees to release him from the payment of 
 the balance, it is not binding. But if a debtor gives his 
 creditor some article not money, though of less value 
 than the whole amount, and it is accepted for the whole 
 debt, it is a good discharge; and so if a debtor procures 
 a friend to pay his creditor a sum less than the whole 
 debt, such payment is a good consideration to support a 
 promise to release the remainder. And a payment of a 
 sum less than the whole debt before it is due is a good 
 consideration to support a release. 
 
 § 453. Promise to release debtor. — Where a man 
 is embarrassed and his creditors mutually agree to take 
 a portion of their respective debts in discharge of all, 
 it is binding, the consideration for the discharge being 
 the mutual promises of the creditors and not the amounts 
 of money they receive. 
 
 § 454. Disputed claims. — Where there is a dispute 
 as to the amount due, and the creditor agrees to accept 
 less than what may really be due in discharge of the 
 whole, it is good. Where a man makes a claim against 
 another in good faith and threatens to bring suit, and 
 money is agreed to be paid if he will not sue, the agree- 
 ment is binding; but if the threat is merely to extort 
 blackmail, and the claimant does not in good faith be- 
 lieve he has a just claim, such agreement can not be 
 enforced. The consideration promised must be some-
 
 § 457] CONSIDERATION, DISCHARGE AND REMEDIES 281 
 
 thing beneficial to the promisee or to a third person, or 
 a detriment to the promisor. A simple agreement to 
 extend the time of payment is not binding, unless extra 
 interest is agreed to be paid, or interest is paid in advance 
 or something of value given. So, if one agrees to carry 
 goods for nothing it is not binding, but if he receives the 
 goods after making such a promise, he must carry and 
 deliver them safely. Communicating know^ledge, and the 
 advice of a lawyer or physician are sufficient consider- 
 ations. 
 
 § 455. Impossible and illegal consideration. — An 
 agreement to do a thing absolutely impossible to be done 
 is no consideration, nor will an agreement based upon 
 an illegal or immoral consideration be binding. Where, 
 at the time of the contract, the thing contracted for is 
 not in existence, there is no consideration, as when two 
 in good faith bargain for the purchase and sale of a 
 horse, supposing it to be alive, when in fact at the time 
 of the agreement it is dead. 
 
 § 456. Executed and executory considerations. — 
 
 The consideration is executed where the thing agreed for 
 is done or given, and it is executory where the thing 
 promised remains to be given or done. If one is em- 
 ployed to labor for a sum certain, the consideration is 
 executed on his part when the labor is performed, and it 
 is executory on the part of his employer until payment is 
 made. 
 
 § 457. Past consideration. — The consideration must 
 consist of a present or future act ; a past act can not serve 
 as a consideration for a promise. This rule operates very 
 harshly in some cases, as where a son of full age fell 
 sick and was cared for by strangers, who paid the
 
 282 ELEMENTARY EAW .[§458 
 
 expenses of his sickness, it was held that a subsequent 
 promise by the father to reimburse them could not be 
 enforced. It is now established law that the past per- 
 formance of services constitutes no consideration even 
 for an express promise, unless they were performed 
 under the express or implied request of the defendant, or 
 unless they were done in performance of some duty rest- 
 ing on him. 
 
 § 458. Failure and want of consideration. — A con- 
 tract may be based on a consideration apparently good, 
 but which fails altogether, in which event the contract 
 will not be enforced. Thus, where a promissory note is 
 given for a horse warranted to be sound, which turns 
 out to have been diseased and worthless at the time, the 
 maker of the note is absolved from his liability to pay it, 
 unless it is a negotiable' note in the hands of one who 
 purchased it in good faith before it was due. Even where 
 money is paid on a contract supposed to be valid, if the 
 consideration fails the money may be recovered back. 
 If there is no warranty of the things sold, or if the de- 
 fects complained of were apparent, failure of consider- 
 ation can not be pleaded. Ordinarily, in a sale of per- 
 sonal property the seller warrants the title, but if at the 
 sale it is clearly stated or understood that the seller is 
 simply disposing of his interest in the thing sold, and 
 the title fails, it is no failure of consideration, for the 
 buyer gets all he bargained for. The subsequent deprecia- 
 tion in value of the thing sold, as when by new inven- 
 tions a patent is made worthless, is not in law a failure 
 of consideration. 
 
 If a contract is based upon a consideration in part 
 legal and in part illegal, it will be enforced as to the legal 
 part if it can be separated, but if no separation can be 
 made, the whole contract fails for want of consideration.
 
 § 459] CONSIDERATION, DISCHARGE AND REMEDIES 283 
 
 A party to a contract, having full knowledge of the 
 facts, may waive his right to plead a want or failure of 
 consideration, as he may waive his right to plead the 
 statute of limitations, his discharge in bankruptcy, his 
 infancy or the like. 
 
 § 459. Discharge of contracts. — Contracts may be 
 discharged either by agreement, performance, breach or 
 by impossibility of performance. Where two parties enter 
 into an agreement they may subsequently enter into 
 another agreement rescinding the first, which would be 
 an example of a discharge by agreement. Discharge by 
 performance takes place where a party performs his 
 undertaking in accordance with the terms of the agree- 
 ment and is thereby discharged from all liability. Where 
 a party to a contract is guilty of a substantial breach of 
 its terms or declares that he will not perform, the other 
 party is discharged from further performance. If the 
 breach only concerns a mere detail, such as the failure 
 to paint the cellar door in the erection of a house, the 
 other party is not discharged but must perform his part 
 of the agreement, although he will be allowed damages 
 for the unimportant breach. A contract is discharged 
 by impossibility of performance where the impossibility 
 exists at the time of the making of the contract, or 
 where the impossibility is subsequent to the making of 
 the contract if it consists in the destruction of the subject- 
 matter of the contract, or in the death or disability of 
 one of the parties if the contract involves personal ser- 
 vice, or where the impossibility is due to a rule of law. 
 A contract to sell a certain horse is discharged if the 
 horse dies before time for the execution of the sale, or 
 if it was dead, unknown to the parties, at the time of 
 the sale. A contract to sing at a theater is discharged 
 by the singer's inability to sing through sickness. A con-
 
 284 ELEMENTARY LAW [§ 460 
 
 tract to build a frame building is discharged if a subse- 
 quent ordinance makes such buildings in that location 
 unlawful. 
 
 § 460. Remedies for breach of contract. — Where one 
 of the parties refuses to perform or otherwise commits 
 a breach of contract, the other party is generally dis- 
 charged from further performance and he has an action 
 for damages in which he can recover what he has lost 
 through the other party's breach. He may, however, 
 choose to abandon the contract and sue the other party 
 for a reasonable compensation for whatever services he 
 has already performed. In certain cases coming under 
 the jurisdiction of equity the injured party may secure 
 specific performance. Thus if A has contracted to con- 
 vey to B a certain lot and then refuses to convey, B 
 can go into equity and get a decree of specific perform- 
 ance compelling A to make the conveyance. Equity will 
 only give relief, however, in certain classes of cases 
 where the remedy at law is inadequate.
 
 461. 
 
 History of the statute. 
 
 466. 
 
 462. 
 
 Provisions of the statute. 
 
 
 463. 
 
 Promises of executors and 
 administrators. 
 
 467. 
 
 464. 
 
 Debt, default and miscar- 
 riage. 
 
 468. 
 
 465. 
 
 Original or collateral ob- 
 
 469. 
 
 
 ligation. 
 
 470. 
 
 CHAPTER XXXIV 
 
 STATUTE OF FRAUDS 
 
 Sec. Sec. 
 
 Agreements in considera- 
 tion of marriage. 
 
 Contracts for sale of 
 lands. 
 
 Agreements not to be per- 
 formed within a year. 
 
 The note or memorandum. 
 
 Signature to memoran- 
 dum. 
 
 § 461. History of the statute. — To prevent frauds 
 and perjuries, a statute was enacted in the reign of 
 Charles II in England, in the year 1677, providing that 
 no action should be brought to enforce certain agree- 
 ments, "unless the agreement upon which such action 
 shall be brought, or some note or memorandum thereof, 
 shall be in writing and signed by the party to be charged 
 therewith or some other person thereunto by him law- 
 fully authorized." It is to be noticed that by this statute 
 parties are not prohibited from making such agreements 
 by parol, but the performance of such parol agreements 
 is purely voluntary. It is simply declared that the courts 
 will not aid in enforcing them. There is some curious 
 history as to who is entitled to the credit of suggesting 
 or formulating this law. Some give it to Lord Hale, 
 but the better opinion is tliat Lord Nottingham is its 
 author. That it is regarded as a good law in principle 
 is shown by the fact that its most important provisions 
 have been re-enacted in all English-speaking countries, 
 especially the fourth and seventeenth sections of the 
 statute. 
 
 285
 
 286 i:i.eme;ntary i,aw [§ 462 
 
 § 462. Provisions of the statute. — The fourth sec- 
 tion provides that no action shall be brought whereby to 
 charge : 
 
 ( 1 ) Any executor or administrator upon any special 
 promise to answer damages out of his own estate. 
 
 (2) Or to charge the defendant upon any special 
 promise to answer for the debt, default or miscarriage 
 of another person. 
 
 (3) Or to charge any person upon any agreement 
 made upon consideration of marriage. 
 
 (4) Or upon any contract or sale of lands, tenements 
 or hereditaments, or any interest in or concerning them. 
 
 (5) Or upon any agreement that is not to be per- 
 formed within the space of one year from the making , 
 thereof. 
 
 Unless the agreement or some memorandum thereof 
 in writing should be signed as above required. 
 
 The seventeenth section provides that no contract for 
 the sale of any goods, wares and merchandise for the 
 price of ten pounds sterling (fifty dollars) or upwards 
 shall be allowed to be good, except the buyer shall accept 
 part of the goods so sold and actually receive the same, 
 or give something in earnest to bind the bargain, or in 
 part payment, unless some note or memorandum of the 
 bargain in writing be made and signed, as required in 
 the fourth section. 
 
 Let us consider the contracts affected by the statute, 
 in the order in which they are mentioned in the statute 
 itself. 
 
 § 463. Promises of executors and administrators. — 
 An executor or an administrator coming into possession 
 of the estate of the testator or decedent is only liable 
 to pay the debts of the estate in the order required by 
 law and so far as the assets of the estate properly ad-
 
 § 465J ■ ■ STATUTE OF FRAUDS 287 
 
 ministered will enable him to discharge such debts. This 
 legal obligation and no other rests upon him, unless he 
 sees fit to assume and incur a personal liability for the 
 debts of the estate. If he does this in a writing, signed 
 by him or his agent, he is bound, but no oral agreement 
 on his part can create such a liability. The statute 
 applies only to debts existing against the estate. If the 
 executor agrees with an heir to pay a sum of money 
 if he will abstain from bringing suit to contest the will 
 or the probate of it, this is a personal undertaking of 
 his own, and one which does not fall within the statute. 
 
 § 464. Debt, default and miscarriage. — What is 
 meant by the terms "debt," "default" and "miscarriage" 
 of another, for which one shall not be answerable upon 
 his oral promise? It may be said, generally, that under 
 these terms are included every form of liability or obliga- 
 tion which rests upon one, whether it grows out of tort 
 or contract, or from whatever cause. There are three 
 persons to be considered : ( 1 ) The person who owes the 
 debt or has incurred the liability. (2) The person to 
 whom the debt is owing or who is entitled to enforce 
 the existing liability. (3) The stranger to the transac- 
 tion, against whom no liability exists, and whom it is 
 sought to charge with the liability of the debtor or 
 wrongdoer. 
 
 § 465. Original or collateral obligation. — Whether 
 an oral promise is enforcible or not under this clause of 
 the statute depends generally upon the question whether 
 the promise is an original obligation or is collateral to 
 some other's obligation. If the former, it would be 
 valid; if the latter, it would be barred. For example: 
 If A promises to pay for goods furnished to B, who 
 makes no promise, it is evident that A's promise is the
 
 288 EI^UMENTARV I,AW [§ 466 
 
 only and original obligation, and that it is not within the 
 statute of frauds. But if B promises to pay for the 
 goods, and A promises to pay in case B fails to do so,, 
 A's promise is collateral, and an action on it is barred 
 by the statute. 
 
 § 466. Agreements in consideration of marriage. — 
 It is hardly necessary to say that this clause of the stat- 
 ute does not refer to the mutual promises of marriage. 
 It has sole reference to promises collateral to the mar- 
 riage which are made upon condition that the marriage 
 shall take place, as where a man agrees to make a 
 settlement or pay a sum of money if a marriage is con- 
 summated. An antenuptial agreement by which, before 
 marriage, a woman agrees to relinquish her marital rights 
 in her husband's property, in consideration of the pay- 
 ment to her of a sum certain, is within the statute and 
 must be in writing to make it binding. Nor is the subse- 
 quent marriage of the parties such a part performance of 
 the contract as will take the contract out of the statute. 
 
 § 467. Contracts for sale of lands. — The word land 
 as it is used in this statute has been held to include not 
 only the land itself, but every claim of a permanent right 
 to hold lands of another for a particular purpose, and 
 to enter upon them at all times witliout his consent. A 
 mere verbal license to enter upon land for a temporary 
 purpose is revocable. Difficulties arise as to what things 
 annexed to land are covered by the term as it is used in 
 the statute. A ripened crop ready to be gathered, and a 
 sale of any growing produce, raised by labor and expense, 
 in actual existence at the time of the contract, may be 
 the subject of a binding parol contract. And it has even 
 been held that where timber or other produce of land, or 
 any other thing annexed to the land is specifically sold.
 
 s 
 
 469 j STATUTE OF FRAUDS 289 
 
 whether the buyer or seller is to sever it, under a special 
 license to enter for that purpose, it is a sale of goods 
 and not a sale of an interest in land. By statutes of 
 some of the states, it is enacted that leases of land for 
 short terms are valid, though resting in parol. 
 
 § 468. Agreements not to be performed within a 
 year. — The agreement must be impossible of perform- 
 ance within the year, and the parties to it must contem- 
 plate that it shall not be performed within the year. The 
 mere fact that it may not be, or is not in fact performed 
 within the year, does not bring it within the statute. 
 Illustrating these rules, it has been held that an agree- 
 ment to do something upon the happening of a marriage, 
 or upon the return of a ship, or to pay a certain sum of 
 money from time to time during the life of another, is 
 not within the statute. But if it can not be fully per- 
 formed within the year, the fact that it may be 
 terminated, or that further performance may be excused, 
 is not sufficient to take it out of the statute. In most 
 of the states it is held that the statute applies only to 
 contracts which are not to be performed on either side 
 within a year; and that if the parol contract is to be fully 
 performed on one side within the year, it will be good 
 under the statute of frauds even though the other side 
 can not be performed within the year. Other siates hold 
 the contrary doctrine. 
 
 § 469. The note or memorandum. — The statute re- 
 quires that to make any of the contracts or agreements 
 just enumerated as within the fourth section of the 
 statute of frauds enforcible, the agreement, or some note 
 or memorandum thereof, shall be in writing and signed 
 by, or by the authority of, the person sought to be 
 
 charged thereby. It becomes important to know what 
 19 — Elem. Law.
 
 290 El^EMIiNTARY LAW [§ 470 
 
 sort of a note or memorandum is here meant. The 
 statute relates to a parol contract, the evidence of which 
 must be supplied by a written note or memorandum. 
 This memorandum may be gathered from correspondence 
 or embodied in a single letter, and it is not necessary 
 that it be made at the time of the agreement. It is rather 
 the acknowledgment of the fact that a contract has been 
 made than a written contract itself, which is an instru- 
 ment entered into and signed at the time it is made. The 
 memorandum may be made by a broker who is the agent 
 of both parties ; it may be made by an auctioneer who is 
 agent for buyer and seller ; it may be made by one of 
 the parties and not delivered to the other, or the fact that 
 it has been made may be unknown to the party who 
 seeks to enforce it until long after it has been made; it 
 may be made at any time before the action is commenced. 
 It must show agreement on the part of the party sought 
 to be charged; it must show clearly the subject-matter 
 and all the terms of the agreement, the parties to it, and 
 some courts hold that it must show what the considera- 
 tion is. Some of the states in their laws adopting the 
 provisions of the statute expressly state either that the 
 consideration must appear in the memorandum or that it 
 is unnecessary. 
 
 § 470. Signature to memorandum. — The signing 
 may be by the party sought to be charged, or by his 
 authorized agent. A mark of an illiterate man is a 
 sufificient signing, or the initials of a name. The place 
 of the signature is unimportant. If the memorandum was 
 written by the party or his agent, and his name appears 
 in the body of it, it is sufficient.
 
 CHAPTER XXXV 
 
 NEGOTIABLE INSTRUMENTS 
 
 Sf. Sec. 
 
 471. Definitions. 480. Certainty. 
 
 472. The Negotiable Instru- 481. Surety, guarantor, ir> 
 
 nients Law. dorser and assignor. 
 
 473. Origin of law merchant. 482. Law of the place. 
 
 474. Foreign and inland bills. 483. Agents. 
 
 475. Parties to a bill of ex- 484. Capacity of parties. 
 
 change. 485. Consideration. 
 
 476. Indorsement. 486. Purchase for value with- 
 
 477. Duty of the holder. out notice. 
 
 478. Special indorsements. 487. Bills of lading and checks. 
 
 479. Signatures and date. 
 
 § 471. Definitions. — Contracts in the form of bills 
 of exchange and promissory notes will now be considered. 
 
 The old definition of a bill of exchange, which is 
 approved by Kent, is as follows : 
 
 A bill of exchange is a written order or request by 
 one person to another, for the payment of money at a 
 specified time, absolutely and at all events. 
 
 A promissory note may be defined as a written 
 engagement by one person to pay to another therein 
 named or to his order or to bearer absolutely and uncon- 
 ditionally a certain sum of money at a time specified 
 therein. 
 
 The main thing that distinguishes these from 
 other contracts is that they are negotiable, that is, that 
 the legal title may be transferred from one person to 
 another, each person getting the legal title and the right 
 to sue in his own name. Most of the law of negotiable 
 instruments is concerned with this special feature and 
 its main purpose is to so facilitate the free exchange 
 
 291
 
 292 ELEMENTARY LAW [§ 472 
 
 of commercial paper as to make it an available medium 
 for commercial transactions. 
 
 § 472. The Negotiable Instruments Law. — The com- 
 mon law governing negotiable instruments which is com- 
 monly known as the law merchant has been codified into 
 the Negotiable Instruments Law and this code has been 
 adopted in almost all of the states and in the District of 
 Columbia. A similar act has been adopted in England. 
 The main objects of the code are to produce uniformity 
 among the various states "and to preserve its existing 
 rules, as reflected by the current of the best judicial 
 authority and existing legislation, in plain intelligible 
 terms." Since it is mainly the codification of the com- 
 mon law and existing statutes with but few important 
 changes, this chapter w\\\ deal with the underlying prin- 
 ciples of the code, it in itself being too lengthy to be 
 printed in a volume of this scope. 
 
 § 473. Origin of law merchant. — Bills of exchange 
 which were first used by the bankers and merchants of 
 Florence and Venice, to facilitate the transfer of credits 
 between distant points, came to England through Erance 
 early in the fourteenth century. Negotiable notes did not 
 come into use in England until about two hundred years 
 ago. Embarrassments arose in the application of the 
 common law of England to these forms of contract, and 
 it was after a long struggle tliat the courts engrafted 
 upon the common law the law merchant, by which the 
 parties to bills and notes are put upon a footing entirely 
 different from that of parties to other contracts. 
 
 Some statutes require that tlie note, to be negotiable 
 according to the law merchant, must be payable to the 
 order of the payee ; some that it must be payable to his 
 order and at a bank of discount and deposit. Some
 
 § 476] negotiabi^e; instruments 293 
 
 authorities hold that a promissory note is negotiable, with- 
 out the phrases "or order" or "to the order." Notes 
 payable to bearer are negotiable by delivery. 
 
 § 474. Foreign and inland bills. — A foreign bill of 
 exchange is one that is drawn in one state or country 
 and payable in another, and the several states of the 
 Union are foreign to one another in this respect. 
 
 An inland bill of exchange is one that is drawn and 
 payable in the same state or country. 
 
 § 475. Parties to a bill of exchange. — The parties 
 to a bill of exchange may be the drawer, who is the 
 maker; the drawee, the person who is requested to pay 
 it; the payee, to whom by the terms ^of the bill it is to be 
 paid. We give a simple form of a bill with the three 
 parties named : 
 
 $500.00 New York, May 1, 1895. 
 
 On demand pay John Jones (payee) or order five 
 hundred dollars, value received, and charge same to 
 account of John Smith (drawer). 
 
 To Richard Roe (drawee), Philadelphia. 
 
 § 476. Indorsement. — If John Jones, the payee, 
 wishes to transfer the bill he does so by simply writing 
 his name on the back of it and delivering it to the per- 
 son to whom he transfers it, and this new party, so long 
 as he keeps the paper, is the indorsee or holder. If he 
 in turn wishes to transfer it, he writes his name on the 
 back and gives it to the person to whom he transfers 
 it, in which case he loses his character as indorsee and 
 holder and becomes an indorser, and the person to whom 
 he transfers the paper becomes the indorsee and holder.
 
 294 El^EMENTARY LAW [§ 477 
 
 §477. Duty of the holder. — It is the duty of the 
 holder of the bill, whether he be payee or indorsee, to 
 promptly present it to the drawee for payment, if it is 
 payable on demand, or to present it to him for acceptance 
 if presentment for acceptance is necessary to fix the 
 maturity of the instrument, or where the instrument 
 expressly stipulates it, or where the bill is drawn else- 
 where than at the residence or place of business of the 
 drawee. If the bill is accepted the drawee evidences his 
 acceptance by writing across the face of the bill the word 
 "accepted," and signing his name under it. If when 
 presented to the drawee he refuses to pay or accept the 
 bill, it becomes the duty of the holder to have it pro- 
 tested if it is a foreign bill; that is done by a notary 
 public who presents ij for payment or acceptance at the 
 place where it is payable in business hours, and upon 
 acceptance or payment not being made, he protests the bill 
 and makes a certificate, attested by his signature and 
 notarial seal, showing the fact of presentment and non- 
 acceptance or nonpayment, as the case may be. Notice 
 in writing of protest must be promptly given by the 
 notary to the drawers and indorsers, if any, in order to 
 fix their liability to the holder. If the bill is not pre- 
 sented in time, and if notice of nonacceptance or nonpay- 
 ment and protest is not promptly given, the drawer and 
 indorsers are discharged from liability, unless by the 
 terms of the bill presentment, demand and protest are 
 waived. 
 
 § 478. Special indorsements. — The form of indorse- 
 ment, and the rights and liabilities of indorsers and 
 indorsees, are not always the same. By an indorsement 
 "without recourse," the indorser engages that the instru- 
 ment is the valid obligation of those whose names are 
 upon it and that he has the right to indorse it, but does
 
 § 481]' NEGOTIABLE INSTRUMENTS 295 
 
 not warrant the solvency of any of the parties to the 
 bill. By an indorsement in blank the indorser makes 
 himself liable to any one who comes into possession of 
 the bill honestly. If his indorsement is special as to a 
 particular person, he is only liable to the person named 
 or to the indorsee of the person named and those claim- 
 ing through him. 
 
 § 479. Signatures and date. — A note or bill of ex- 
 change must be in writing and signed; the initials or a 
 mark will be a good signature, and it is immaterial where 
 the signature is placed; the party making it will be bound 
 according to his intent. A date is not essential, and if 
 there is a blank for a date any holder may fill in the 
 proper date. Until a note is delivered it has no force. 
 Indorsements are presumed to be of the date of the 
 note, but the real date is matter for proof. 
 
 § 480. Certainty. — We have seen that the promise 
 to pay must be without condition, and if conditions are 
 annexed the paper is not negotiable by the law merchant. 
 It must be for the payment in money. A promise to 
 pay in grain or any other specific article is not a nego- 
 tiable note. The time of payment must also be certain; 
 it may be fixed by any event which is sure to occur, as 
 the event of one's death; if payable on demand it is due 
 instantly. So it is necessary that the place of payment 
 should be certain. If no place is named then the place 
 where the maker or drawee resides is presumed to be 
 meant. The amount to be paid must be certain. If the 
 amount is expressed in figures and in writing and they 
 differ, the writing controls. 
 
 § 481. Surety, guarantor, indorser and assignor. — 
 
 In addition to the original parties to negotiable instru-
 
 296 ELEMENTARY LAW [§ 482 
 
 ments, the following may become liable thereon, that is, 
 surety, indorser, guarantor or assignor. The rights and 
 obligations of each are different. 
 
 A surety is generally a co-maker, and his promise 
 is to meet an obligation which becomes his own the 
 moment the principal fails to meet it. A surety is 
 liable as much as the principal is liable, and he may be 
 sued as a promisor. 
 
 A guarantor's promise is to pay the debt of the 
 principal, if it is not paid by him. He is entitled to 
 notice of the nonpayment within a reasonable time, but 
 is not discharged from liability by delay in the notice, 
 unless actually damaged thereby. 
 
 An indorser contracts to be directly liable, but only 
 upon condition of due presentment of the bill or note on 
 the exact day of its maturity and due notice of its dis- 
 honor. Failure in either particular discharges him abso- 
 lutely from liability, whether he be damaged or not by 
 the failure. 
 
 An assignor of a negotiable instrument is one who 
 passes the title by mere delivery, without writing his 
 name upon it. This may happen when the instrument is 
 payable to bearer or indorsed in blank. The assignor 
 does not promise that the obligation shall be paid, but 
 he warrants that he knows no facts that will prove the 
 instrument to be valueless. 
 
 In addition to the distinctive obligation of each, the 
 indorser and the assignor each warrants : ( 1 ) That the 
 instrument is genuine, (2) that it is valid, (3) that prior 
 parties are competent, and (4) that he himself has law- 
 ful title to the instrument and right to transfer it. 
 
 § 482. Law of the place. — Where a bill or note is 
 made in one place and is payable in another, the law of 
 the place of payment fixes the rights of the parties.
 
 § 485] NEGOTIABLK INSTRUMENTS 297 
 
 Where money payable in one state is secured by a 
 mortgage upon land in another, it is difficult to determine 
 what law controls. Where it is attempted to enforce 
 payment by foreclosure, the general rule, in the absence 
 of statutes to the contrary, is that the rights of the 
 parties as to the rate of interest are ascertained by refer- 
 ence to the law of the place of payment, but that in all 
 that relates to the enforcement of the remedy, the law of 
 the place where the mortgaged property is situated will 
 control. 
 
 § 483. Agents. — In the execution of notes by an 
 agent, he should take care that he does not bind himself 
 personally, and to avoid this he should always sign the 
 name of his principal, and append to that his own name, 
 with letters or words designating himself as agent. So 
 partners giving notes in the firm's business should always 
 sign by the firm name. If a note, negotiable in form, is 
 signed and delivered to another, with the amount and 
 date, names of drawee, payee, etc., left blank, the person 
 to whom it is delivered is the agent of the maker to fill 
 the blanks in accordance with the intention of the maker. 
 Otherwise, the maker is not bound except to subsequent 
 holders in good faith. 
 
 § 484. Capacity of parties. — As to the capacity of 
 persons to make and indorse notes and bills, and the 
 effect of the various forms of legal disability, as infancy, 
 insanity and the like, upon the rights of the parties, it 
 is enough to say that the general rules governing con- 
 tracts heretofore stated will apply. 
 
 § 485. Consideration. — As between the original par- 
 ties to a note or bill, some legal consideration is neces- 
 sary to support it, but the obligation assumed by an
 
 298 ELEMENTARY LAW [§ 486 
 
 indorser for the accommodation of one of the parties, 
 by its very nature, has no consideration to support it. 
 If the accommodation indorser is obhged to take up or 
 pay the note or bill, he has a right of action against all 
 prior parties who are liable on the paper. 
 
 § 486. Purchase for value without notice. — It is a 
 
 distinctive quality of a negotiable instrument that if 
 before it is due it comes into the hands of an innocent 
 purchaser for value, he takes it free from any defenses 
 or equities that may exist between prior holders or the 
 original parties, respecting the title, the amount or the 
 consideration. Though the instrument be stolen, though 
 the maker may have claims against some prior holder, 
 though the instrument be procured by fraud, be paid, or 
 •have no consideration — such defects perish with the 
 transfer, so far as the innocent holder is concerned. 
 Other defenses, such as forgery, alteration, infancy, etc., 
 may be made by the party claiming the defense against 
 even an innocent purchaser. Such rules are necessary 
 to secure the free and ready transfer of negotiable in- 
 struments. If purchasers of such instruments took sub- 
 ject to all defects it would obviously impede their cir- 
 culation and usefulness. 
 
 § 487. Bills of lading and checks. — A bill of lading 
 is a written instrument acknowledging receipt of goods 
 and agreeing to transport them to a specified place and 
 deliver them to the consignee or his assigns. It is a 
 receipt and a contract, having the usual attributes thereof. 
 It is at the same time the representative of the goods, 
 and as such has certain qualities of negotiability that 
 make it proper to consider them in connection with the 
 subject of bills and notes. The holder of a bill of lading 
 may by indorsing and delivering the instrument to
 
 § 487] NEGOTIABLE INSTRUMENTS 299 
 
 another pass to the transferee the title to the goods 
 represented, as fully as though the goods themselves were 
 delivered. The transferee, if in good faith, takes the 
 title free from any claims against the indorser, such as 
 the right of stoppage in transitu or the right to rescind 
 for fraud. But he takes only such title as the indorser 
 actually had, so that if the bill of lading were stolen, 
 or if the original shipper had no title to the goods, the 
 indorsee could acquire none. Thus a bill of lading is 
 only negotiable to a limited extent. It does not come 
 under the Negotiable Instruments Law. 
 
 Checks are bills of exchange and come within the 
 /)rovision of the code.
 
 CHAPTER XXXVI 
 CONTRACTS OF INSURANCE 
 Sec. . Sec. 
 
 488. 
 
 Definition. 
 
 492. 
 
 Payment of premiums, 
 
 489. 
 
 Contract, how made. 
 
 493. 
 
 Waiver of payment. 
 
 490. 
 
 How interpreted. 
 
 494. 
 
 Insurable interest. 
 
 491. 
 
 Warranty and representa- 
 tion. 
 
 495. 
 
 Increase of risk. 
 
 § 488. Definition. — Insurance is a contract whereby 
 one party agrees to indemnify anotner in case ne snail 
 suffer loss in respect of a specified subject by a specified 
 peril. The party who insures is called the underwriter; 
 the party indemnified is called the insured. When the 
 contract is in writing it is called the policy. Unless pro- 
 hibited by a law a verbal contract of insurance is valid. 
 And so, after the execution and delivery of the policy its 
 terms may be modified by verbal agreement. Insurance 
 contracts may be made to pay a certain sum in case of 
 death or accidental injury of some person, or of death 
 or accidental injury to live stock; in case of loss of prop- 
 erty by fire or tornado; in case of loss of ships or their 
 cargoes by perils of the sea; in case of failure of title 
 to property; in case of the temporary illness of the 
 insured. These are all forms of indemnity contracts 
 which may be properly called insurance contracts. 
 
 § 489. Contract, how made. — The form of the con- 
 tract is immaterial, unless there is something in the law 
 or the charter of the company making it which requires 
 it to be in a specified form. When the policy is issued 
 by the company, and accepted by the insured, the rights 
 
 300
 
 § 491] CONTRACTS OF INSURANCE 301 
 
 and liabilities of the parties are fixed by its terms. If 
 all the terms of the contract have been agreed upon, and 
 it only remains for the company to issue the policy, the 
 failure to issue it will not invalidate the contract. When 
 the contract takes effect is a question which is to be 
 determined by reference to the rules already stated, under 
 the head of contracts in general. Where the agent of the 
 company agrees with the insured upon the terms of the 
 contract, but with the express understanding that it is 
 not to take effect until the company has approved it, no 
 valid contract exists until such approval. 
 
 § 490. How^ interpreted. — When made in w^riting, 
 the interpretation of the contract is for the court, the 
 object being always to arrive at the real intention of the 
 parties. It can not be denied, however, that the rules 
 of interpretation adopted in the courts of the country in 
 insurance cases tend to the conclusion that insurance 
 companies are not favorites of the law. Stipulations in 
 a policy are construed liberally towards the insured, and 
 strictly against the insurer. Even where a stipulation in 
 a policy is violated by the insured, it will not prevent a 
 recovery on the policy, unless it is expressly provided 
 that such violations shall work a forfeiture. 
 
 § 491. Warranty and representation. — Questions 
 arise whether certain stipulations in the policy amount 
 to a warranty or a representation merely. A warranty 
 is a statement or stipulation inserted in or referred to 
 in and made a part of the policy, upon the truth or per- 
 formance of which on the part of the insured the validity 
 of the contract depends. A representation is an incidental 
 statement made by the insured with regard to some 
 feature of the risk upon the faith of which the contract 
 is entered into. It is said to be no part of the contract.
 
 302 ELEMENTARY lAW [§ 492 
 
 and that it need not be literally, though it must be sub- 
 stantially true. So it is evidently a matter of difficulty 
 in many cases to distinguish between the two. Inten- 
 tional concealment of material facts will avoid a policy 
 unless the company knew of their existence. Material 
 facts are such facts only as may be fairly presumed to 
 have been material in the belief of the insured. 
 
 § 492. Payment of premiums. — The premium is the 
 consideration for the insurance, and must be paid by 
 the insured or by some one for him. Where the policy 
 provides that the payment of the first premium must be 
 made when the policy is delivered, it does not take effect, 
 though delivered, until payment is made. Where a note 
 is given and accepted for the premium, a failure to pay 
 the note when due will not avoid the policy unless it is 
 expressly stipulated that such shall be its effect. The 
 manner of payment is immaterial if it is accepted by 
 the company or its agent, and is in accordance with the 
 usual course of business of the agent, known to the 
 company. In companies where the insured is entitled to 
 have his dividends credited as part payment of his premi- 
 ums, it is the duty of the company to give him timely 
 notice of the amount in cash which it is necessary for 
 him to pay, the reason being that the company, having 
 exclusive knowledge of the facts, is bound to make them 
 known. Premiums falling due on Sunday may be paid 
 on the following Monday. 
 
 § 493. Waiver of payment. — An agent having au- 
 thority to receive the premium may agree with the in- 
 sured to waive prompt payment, the agent becoming 
 debtor to the company for the amount, and such waiver 
 will bind the company. And even where the policy makes 
 a failure to make prompt payment a cause of forfeiture,
 
 § 495] CONTRACTS OF INSURANCE 303 
 
 if the company has been in the habit of granting 
 indulgence to the insured and accepting payments after 
 due, it can not insist upon a forfeiture for a failure to 
 make prompt payment. 
 
 § 494. Insurable interest. — It is essential to a valid 
 policy that the insured should have an insurable mterest 
 in the life, or the thing insured, and generally speaking, 
 whatever has an appreciable pecuniary value, and is sub- 
 ject to loss or deterioration, or of which one may be de- 
 prived, or which he may fail to realize, whereby his 
 pecuniary interest is or may be prejudiced, may properly 
 constitute the subject-matter of insurance, the object of 
 insurance being to protect men against uncertain events 
 which may in any wise be of disadvantage to them. 
 
 § 495. Increase of risk. — The doing of anything by 
 the insured, or with his assent, which increases the risk 
 of the company, will avoid the policy, as the removal of 
 one whose life is insured to a place prohibited by the 
 policy, or the change of a business carried on upon the 
 insured property to another business which increases the 
 danger of loss by fire. It is the duty of the insured who 
 contemplates a change of that character to notify the 
 company and procure its assent to the proposed change. 
 In making answer to questions as to the previous serious 
 illness of the applicant for life insurance, if the applicant 
 in good faith believes his answer to be true, it will not 
 avoid the policy, though his answer may be erroneous.
 
 CHAPTER XXXVII 
 SALES AND OTHER PARTICULAR CONTRACTS 
 
 Sec. 
 
 
 Sec. 
 
 
 496. 
 
 Contracts of sale and ex- 
 
 500. 
 
 Delivery. 
 
 
 change. 
 
 SOL 
 
 Contracts of bailment. 
 
 497. 
 
 \Varranties. 
 
 502. 
 
 Contracts of common car- 
 
 498. 
 
 Transfer of title. 
 
 
 riers. 
 
 499. 
 
 Sale of goods, wares and 
 merchandise. 
 
 
 
 § 496. Contracts of sale and exchange. — Having 
 considered the nature of contracts in general, and how 
 and by whom they may be made, we proceed to inquire 
 into the nature of particular contracts, and first of con- 
 tracts of sale and exchange. Kent says: "A sale is a 
 contract for the transfer of property from one person to 
 another for a valuable consideration. Three things are 
 requisite to its vaHdity, that is, the thing sold, which is 
 the object of the contract, the price, and the consent of 
 the contracting parties." By the Roman law things sold 
 and delivered did not become the property of the buyer 
 until he had paid the seller the price or satisfied him in 
 some way or other, as by procuring some one to be 
 security or by giving a pledge. But if the seller accepted 
 the credit of the buyer the thing then immediately be- 
 came the property of the buyer. And this is practically 
 the law now in all civilized countries. 
 
 § 497. Warranties. — The thing sold must exist. A con- 
 tract of sale of a dead horse, which the parties think is liv- 
 ing, is no sale. This is true of the sale of a house which 
 had been destroyed, if the house and not the land on 
 which it was built was the principal thing in the minds 
 
 304
 
 § 497] SALES AND OTHER PARTICULAR CONTRACTS 305 
 
 of the contracting parties. When goods are sold there 
 is an impHed warranty that the seller has title. There 
 is no warranty of title to real estate sold unless it is 
 expressed in the conveyance. If one in due form con- 
 tracts for the sale of real estate, and refuses to convey, 
 the court at the suit of the buyer will compel the seller 
 to convey, if the buyer has performed or tendered per- 
 formance of his part of the contract; or if the buyer 
 elects he may sue the seller for damages. Except in rare 
 cases, as where the contract is for the sale of stock in 
 a corporation, courts will not compel the seller of personal 
 property to transfer it to the buyer, leaving the buyer to 
 his action for damages. 
 
 As to the quality of goods sold there is no warranty 
 implied except in cases of sales by sample or by descrip- 
 tion where there is a warranty that the goods sold will 
 be of the same quality as the sample, or correspofid to 
 the description. Where a dealer in a special kind of 
 goods sells by description, there is also an implied war- 
 ranty that such goods will be merchantable. Where a 
 purchaser buys an object for a special purpose from the 
 producer, relying upon his skill and judgment, the seller 
 impliedly warrants the object as reasonably fit for such 
 a purpose. There may be latent defects in the article 
 unknown to both parties, and in such cases the buyer 
 takes it at his own risk, but if the seller knew of such 
 defects his concealment of them might amount to fraud, 
 which would give the buyer a right to rescind the con- 
 tract or sue for damages. Where defects of quality were 
 apparent and each had equal means of information, there 
 is no fraud, nor will mere statements of opinion as to 
 value made by the seller amount to fraud. 
 
 If in a sale of several tracts of land or several horses 
 at the same time title fails as to part, the buyer can 
 
 not be held to the contract unless he waives his right to 
 20 — Elem. Law.
 
 306 ELEMENTARY LAW [§ 498 
 
 object. Of course, if there is a total failure of consider- 
 ation the contract is void. If parties are negotiating b}'' 
 letter for a sale, the party making the offer may revoke 
 it at any time before it is accepted; once accepted, how- 
 ever, it can not be revoked. 
 
 Express warranties are those embodied in the terms 
 of the contract. Express warranties do not exclude 
 implied warranties unless inconsistent with them. General 
 warranties will not cover specific, obvious defects in the 
 thing warranted, although a special warranty will if so 
 intended. General words of commendation, generally 
 known as ''puffing" or "sellers' talk" are not warranties. 
 
 §498. Transfer of title.— When does the title to 
 the thing sold pass from the seller and vest in the buyer? 
 When the terms of the sale are agreed upon and the 
 seller <!^ias performed his part of the contract, from that 
 instant the property is at the risk of the buyer. So, 
 when the terms are agreed upon and the buyer pays or 
 tenders the price, he is entitled to possession of the thing 
 purchased. These general rules may be varied by the 
 agreement of the parties, fixing a different method of 
 payment, postponing the time of delivery, etc. If 
 credit is given, the title passes to the buyer without pay- 
 ment, but if in such case the buyer becomes insolvent 
 after the purchase and before the thing purchased comes 
 to his possession, the seller may reclaim the goods, and 
 defeat the buyer's title by asserting wliat is called the 
 right of stoppage in transitu. An unconditional contract 
 of sale of specified goods in deliverable condition passes 
 title at once, although both delivery and payment are to 
 be made at a future time, unless the contract expressly 
 provides otherwise. If the goods are not in a deliverable 
 state, or there is something yet to be done to them as 
 branding or stamping, the title passes as soon as they
 
 § 499] SAIvES AND OTHER PARTICULAR CONTRACTS 307 
 
 are put in the deliverable state or the branding or stamp- 
 ing is done. 
 
 Where the unconditional sale is of unspecified but de- 
 scribed goods, the title passes as soon as the goods are 
 specified or clearly set aside for that purpose or delivered. 
 
 § 499. Sale of goods, wares and merchandise. — 
 Oral contracts for the sale of goods worth fifty dollars 
 and over can not be enforced, unless, (1) the buyer 
 receives part of the goods, (2) the buyer gives some- 
 thing in earnest to bind the bargain. This section does 
 not apply to contracts for labor, nor where one goes 
 to a mechanic and orders the manufacture of an article. 
 On this point there is a conflict in the decisions. It is 
 held by some courts that if the buyer gives an order for 
 the manufacture of an article which is usually kept in 
 stock, it is within the statute, but that if he orders some- 
 thing of a particular pattern to be made to suit his own 
 fancy the statute does not apply, and this appears to be 
 the weight of authority. Sales at auction are within the 
 statute, and it is the duty of the auctioneer when he an- 
 nounces a sale to make a memorandum of it or to deliver 
 the goods. In order to make a delivery of a part of 
 the goods effective, the delivery must be complete and be 
 accepted by the buyer; so where it is desired to bind the 
 bargain by a delivery of something in earnest, the pay- 
 ment must be made if in money, or the article actually 
 delivered if it is something else than money, and this may 
 be done at any time before suit, unless the statute requires 
 it to be done at the time the bargain is made. 
 
 As to the form of the memorandum necessary to bind 
 a bargain for sale of goods, what has already been said 
 of the requisites of the memorandum to bind agreements 
 for the sale of lands will apply.
 
 308 EI.EMENTARY I.AW [§500 
 
 § 500. Delivery. — As we have seen in what has 
 been said, if the value of the chattel sold is fifty dollars 
 or more, and it is not convenient to make prompt deliv- 
 ery, the contract of sale may be made binding by a memo- 
 randum or by the payment of part of the purchase-money. 
 And a delivery of a part of the goods sold and an 
 acceptance of them by the buyer will bind the bargain. 
 Where nothing is said as to the time for payment and 
 delivery, they are both to be done at the same time. In 
 all sales where anything remains to be done by the 
 buyer, such as the giving of a note or security for the 
 purchase-money, the property does not vest in the buyer 
 until that condition is performed, unless it is waived by 
 the seller. Delivery to the agent of the buyer, or to 
 a carrier for him, is a good delivery, and where no par- 
 ticular mode of carriage is named in the contract, the 
 seller may send the goods by any of the customary modes 
 of transportation. There may be a symbolical delivery 
 of the things sold, as by giving the key of the ware- 
 house which contains them to the buyer. Marking the 
 goods sold with the name of the buyer, or setting them 
 apart by his request, in a place designated by him, may 
 constitute a good delivery. If no place for delivery is 
 fixed by the contract, the rule is that they are to be 
 delivered at the place where the contract is made, or 
 where the goods sold are kept for sale. A note payable 
 in specific articles, as in wheat or any other commodity, 
 must be presented for payment at the farm or place of 
 business of the maker of the note. Secret sales of per- 
 sonal property, which is left in the possession of the 
 seller, are not absolutely void, but the retaining of pos- 
 session by the seller is a strong circumstance tending to 
 show that the sale was a sham, especially where the seller 
 is in debt and embarrassed at the time. The federal 
 courts hold that a bill of sale is fraudulent as to third
 
 § 501] SALES AND OTHER PARTICULAR CONTRACTS 309 
 
 persons, unless possession is given to the buyer. The 
 decisions of the state courts are not all in harmony with 
 this rule. 
 
 § 501. Contracts of bailment. — Bailment Is the de- 
 livery of one's personal property to another for a tem- 
 porary purpose, to be returned to the owner when the 
 purpose is fulfilled. Some writers give five kinds of 
 bailment, but Story's classification is simpler. He gives 
 three: (1) Bailment for the benefit of the bailor. (2) 
 For the benefit of the bailee. (3) For the benefit of 
 both. The degree of care to be exercised by the bailor 
 depends upon the character of the bailment and the 
 character of the article bailed. A mere borrower of 
 another's property, who is to make no return for the use 
 of it and is a bailee for his own benefit, is held to the 
 exercise of the highest degree of care, or extreme care. 
 One who hires a horse from another is a bailee for the 
 benefit of both parties, and is not required to exercise so 
 high degree of care as a bailee for his own benefit, but 
 the care must be such as a prudent person would exer- 
 cise with reference to his own property, or what is 
 called ordinary care. Where property is left by the 
 owner with another for safe keeping, without paying or 
 agreeing to pay therefor, it is a bailment for the exclusive 
 benefit of the bailor, and only a slight degree of care is 
 required of the bailee. Of course, one is not bound to 
 become a gratuitous bailee, and a promise to become such 
 is not binding, but if goods are received by a gratuitous 
 bailee he must care for them according to his promise. 
 A common carrier is a bailee who is bound to receive 
 goods and deliver them where directed without loss or 
 injury unless prevented by the act of God or the public 
 enemy. A carrier who does not hold himself out to carry 
 for the public, but only occasionally transports goods for
 
 310 ELEMENTARY LAW [§ 502 
 
 hire, is not a common carrier, and is only held to the 
 exercise of ordinary care. An innkeeper is a bailee who 
 insures the safety of his guests' goods, just as a common 
 carrier does. 
 
 A mechanic who receives material to be hiade into an 
 article, or receives an article needing repairs, is a bailee 
 who is bound to use reasonable diligence in completing 
 the work and restoring the article to the owner. He 
 may, however, demand pay for his work and keep possession 
 of the article until his reasonable charges are paid. A 
 warehouseman is a bailee who can retain possession of 
 property put in his care until his storage charges are paid. 
 A pledgee, or a pawnbroker, is a bailee who holds per- 
 sonal property as security for a debt, and may retain 
 it until the debt is paid or payment tendered. If, after 
 a bailee has received property, a third party claims it, 
 the bailee may refuse to deliver to either until the con- 
 troversy is settled between the rival claimants, and he 
 may bring his action of interpleader, in which the claim- 
 ants may be required to come into court and try the 
 question of the title or right to possession of the prop- 
 erty in the possession of the bailee. 
 
 § 502. Contracts of common carriers. — The con- 
 tracts of common carriers relate to persons, as well as 
 personal property, and the subject of their rights and 
 liabilities calls for a more extended treatment than could 
 be properly given to it under the head of bailment. Rail- 
 way, steamboat and ship companies, and all other public 
 agencies for transporting goods or persons for hire, are 
 in law common carriers. The contract of a common 
 carrier of goods is to receive and promptly transport the 
 property entrusted to him, to the place of destination, 
 he being responsible for all loss or damage which hap- 
 pens to the goods while in his care, unless such loss or
 
 § 502] SALES AND OTHER PARTICULAR CONTRACTS 311 
 
 damage Is caused by the act of God or the piibHc 
 enemy. 
 
 As a carrier of persons, he is held to the highest 
 degree of care for their safety. By holding himself out 
 as a common carrier of passengers, he undertakes to 
 receive all proper persons who present themselves for 
 transportation, and to carry them safely to their destina- 
 tion, upon their paying or tendering to him the customary 
 fare for such service. And if he receives as a passen- 
 ger one w^ho is to be carried gratuitously, he must exer- 
 cise the same care for such passenger as if he paid full 
 fare. The same obligation as to care applies to persons 
 v^hom he receives from other connecting lines of 
 transportation, and to travelers who get upon the wrong 
 railway train by mistake. Carriers are not insurers of 
 the safety of their passengers. If the passenger is 
 injured or killed, through unavoidable accident, as where 
 injury or death results from defects in machinery or ap- 
 pliances which could not have been discovered by the 
 exercise of the highest degree of care, or if the injury 
 or death results from the act of God, as where by a 
 tornado an obstruction is thrown in front of a locomo- 
 tive engine, the carrier is not liable, unless there is some 
 concurring negligence on his part. Ordinarily, a passen- 
 ger who is injured by a third person, not in the employ 
 of the carrier, has no claim upon the carrier, but if, 
 through the negligence of the carrier's employes, a dan- 
 gerous person, as a lunatic or a drunken man, kills or 
 injures a fellow passenger, the carrier is liable. The 
 carrier has a right to make reasonable rules regulating 
 the conduct of passengers, and if a passenger with notice 
 of these rules violates them and puts himself in a place 
 of danger, and injury results to him on account of his 
 misconduct, he has no claim for damages.
 
 PART VI 
 
 PARTNERSHIP AND CORPORATIONS 
 
 CHAPTER XXXVIII 
 
 PARTNERSHIP 
 
 Sec. Sec. 
 
 503. Definition. 509. Individual and partnership 
 
 504. Authority, and liability of creditors. 
 
 partners. 510. Rights of partners after 
 
 505. Formation of partnership. dissolution. 
 
 506. Rights of partners. 511. Limited partnership. 
 
 507. Deeds of partners. 512. Good will. 
 
 508. Dissolution of partnership. 
 
 § 503. Definition. — Partnership, as defined by Kent, 
 "is a contract of two or more competent persons, to 
 place their money, effects, labor, and skill, or some or 
 all of them, in lawful commerce or business, and to 
 divide the profit and bear the loss, in certain proportions." 
 
 § 504. Authority and liability of partners. — Each 
 
 partner is the general agent for all the others, and may 
 bind them by any contract which he may make within 
 the scope of the partnership business. If a member of 
 a firm of dry goods merchants buys real estate for pur- 
 poses of speculation in the firm name, it will not bind 
 his copartners, and so of all ventures not within the 
 scope of the firm's business. As between the partners 
 themselves they may limit the powers and fix the duties 
 of one another by agreement, and a violation of such 
 agreement resulting in loss to the other partners would 
 
 312
 
 s 
 
 505] PARTNERSHIP 313 
 
 make the wrongdoer liable in damages to his copartners. 
 A nominal partner is one who allows his name to be 
 used by the firm, but has no interest in the profits; his 
 liability for the firm's debts, however, is the same as 
 that of the real members of the firm. A silent partner is 
 one who has an interest in the firm which is unknown 
 to the public. He may share in the profits, and he is 
 liable for all the debts of the firm. \\'hen a partner 
 retires from the firm and wishes to avoid future liability 
 for its debts, he must give actual notice of the fact to 
 all customers of the firm, and notice to the public by 
 printing the same in some newspaper of general circula- 
 tion in the locality where the business has been conducted. 
 If one holds himself out as a partner, and persons deal 
 with the firm on the faith of it, he is held liable to such 
 persons for the firm debts, though he was not a partner 
 in fact. 
 
 § 505. Formation of partnership. — To form a part- 
 nership it is not necessary that the contract should be in 
 writing, and if there is no agreement to the contrary, the 
 partners are presumed to be equal, and the partnership 
 is presumed to begin at the date of the agreement. Part- 
 nership contracts may be made for the carrying on of 
 any lawful business. Inequality of skill, industry, ability 
 or attention to the business will not increase or diminish 
 a partner's share of the profits unless the agreement 
 between the partners makes provision for it, and unless 
 it is so agreed no partner is entitled to anything but his 
 share of the profits as a compensation for his services. 
 One may sometimes share in the profits without incurring 
 liability as a partner, as where a salesman or an agent 
 agrees to take as a compensation for his services a sum 
 equal to a certain percentage of the profits.
 
 314 DI^EMENTARY LAW [§ 506 
 
 § 506. Rights of partners. — Partners can not deal 
 with the partnership property for their individual benefit 
 to the injury of the creditors of the firm or of their co- 
 partners. If one partner has made advances or incurred 
 liabilities for the firm, his claim upon the firm's assets 
 and property will have priority over a chattel mortgage 
 given by another partner to secure his individual debt. 
 Partners are in some respects trustees for each other. 
 They can not make profit to themselves individually at 
 the expense of the partnership, and are bound to make 
 full disclosures to each other. In some respects a part- 
 ner acts as agent for the partnership, and there exists 
 between him and his partners the reciprocal duties of 
 principal and agent. 
 
 § 507. Deeds of partners. — Real estate owned by 
 a partnership for partnership purposes can be trans- 
 ferred by a conveyance in which all the partners should 
 unite as grantors. If it is desired that one should act 
 for all, his authority should be evidenced by a power of 
 attorney executed by his copartners. And while it is 
 not, as a rule, necessary to have the wives of the part- 
 ners join their husbands in such conveyances, it is the 
 safer practice to have them do so. 
 
 § 508. Dissolution of partnership. — A partnership 
 may be dissolved in various ways, as : (1) By the death 
 of one of the partners. Sometimes the articles of part- 
 nership provide that the representative of the deceased 
 partner may continue the business, or that the capital 
 of the deceased partner shall remain for a limited time 
 in the firm business. (2) By the transfer of the interest 
 of one partner. (3) By the voluntary withdrawal of a 
 partner from tlie firm. Though the partnership agree- 
 ment may fix the duration of the partnership, any part-
 
 § 509] PARTNERSHIP 31i 
 
 ner may dissolve it by retiring before tiie expiration of 
 the time. If his conduct in so doing is wrongful and 
 results in loss to his copartners, they may recover dam- 
 ages from him for breach of his contract. (4) Insanity 
 or insolvency of a partner. (5) By the mutual consent 
 of the partners. (6) The sale of tlie whole property 
 invested in the partnership business. (7) The hopeless 
 insolvency of the firm. (8) The occurrence of some 
 event which makes the business of the partnership illegal. 
 The court may decree a dissolution at any time when 
 the interest of the partners or the firm creditors re- 
 quire it. 
 
 The practical effect of the dissolution, from whatever 
 cause, is the same. If the partners can agree upon a 
 method of winding up the business after dissolution, 
 and creditors do not object, it may be done in that way. 
 If creditors or any partner objects the court will appoint 
 a receiver, whose duty it will be to sell the assets, pay 
 the creditors and expenses of the receivership, and dis- 
 tribute the surplus among the partners according to their 
 respective interests. 
 
 Where a dissolution results from the death of one of 
 the partners, the surviving partners are clothed by the 
 law with authority to settle the firm's affairs, and the 
 personal representatives of the deceased partner can not 
 meddle with the firm's affairs unless there is mismanage- 
 ment on the part of the surviving partners. Most of 
 the states have statutes providing for the settlement of 
 the partnership business by surviving partners, requiring 
 them to file inventories in court, to give bond, and to 
 make reports of their doings, as in case of administrators 
 and executors. 
 
 § 509. Individual and partnership creditors.— Ques- 
 tions arise concerning the conflicting claims of the
 
 316 ELEMENTARY LAW [§510 
 
 creditors of the firm and the individual partners to par- 
 ticipate in the assets of the partnership, and of the part- 
 ners individually. The equitable rule is followed in all 
 the courts, that firm creditors must look first to firm 
 assets, and individual creditors to the assets of the indi- 
 vidual members of the firm. If there is a surplus of 
 the firm" assets after paying firm creditors, and a defici- 
 ency of individual assets to pay individual creditors, these 
 creditors may resort to the share of the surplus which 
 would be going to the partner against whom they hold 
 unsatisfied claims; so may firm creditors, after exhausting 
 firm assets, resort to what may remain of individual 
 assets after the discharge of individual debts. 
 
 § 510. Rights of partners after dissolution. — The 
 
 dissolution of the firm puts an end to the power of the 
 partners to bind their copartners to any new engagements, 
 except so far as it may be necessary or proper in clos- 
 ing up the firm's business. Where one partner retires 
 and the remaining partners assume the firm debts, the 
 retiring partner may be held by the creditors, but if he 
 is compelled to pay he would have the same rights 
 against his former partners that a surety who had paid 
 a debt would have against his principal. 
 
 §511. Limited partnership. — We have been speak- 
 ing of general partnerships, in which each and all of the 
 partners are individually liable for all the debts of the 
 firm. Limited partnerships are creatures of statutory 
 law. They are partnerships in which the pecuniary 
 responsibility of some of the partners is limited to a fixed 
 sum. Persons wishing to embark their means in such 
 ventures are required to comply strictly with the provi- 
 sions of the law authorizing their formation.
 
 § 512] PARTNERSHIP 317 
 
 § 512. Good will. — The good will of the partner- 
 ship goes to the surviving partners in case of dissolution 
 by death, and where one partner disposes of his interest 
 to his copartners, his interest in the good will goes with it.
 
 CHAPTER XXXIX 
 
 CORPORATIONS 
 
 Sec. 
 
 
 Sec. 
 
 513. 
 
 Definition. 
 
 520. 
 
 514. 
 
 Nature of corporations. 
 
 521. 
 
 515. 
 
 Powers of corporations. 
 
 522. 
 
 516. 
 
 Organization of corpora- 
 tions. 
 
 523. 
 
 517. 
 
 The charter. 
 
 524. 
 
 518. 
 
 Contracts of corporations. 
 
 
 519. 
 
 Rights of stockholders. 
 
 
 Dissolution. 
 
 Vested rights. 
 
 Deeds of corporations. 
 
 Fraud by officers of the 
 corporation. 
 
 Public service corpora- 
 tions. 
 
 § 513. Definition. — A corporation is a body con- 
 sisting of one of more persons, established by or under 
 the authority of the law, for certain specific purposes, 
 with the capacity of succession (either perpetual or for 
 a limited period) and other special privileges not pos- 
 sessed by individuals yet acting in many respects as an 
 individual. Corporations are either sole, consisting of 
 one member at a time, or aggregate, consisting of more 
 than one member. A public corporation is created for 
 the purpose of carrying on some public business, such 
 as towns, cities, counties. A private corporation is 
 formed by the voluntary act of individuals for their own 
 convenience or profit, such as banking companies, turn- 
 pike and railway companies. These are in a sense pub- 
 lic, for they render service to the public, but they are 
 distinguished from public corporations by the fact that the 
 latter are founded by the government for public purposes 
 alone. There is another class designated as public quasi 
 corporations, which have some of the attributes of ordi- 
 nary corporations, as boards of school commissioners, 
 boards of county commissioners, boards for the equaliza- 
 
 318
 
 § 514] CORPORATIONS 319 
 
 don and assessment of taxes, boards of supervision of 
 poorhouses, etc. Joint stock companies, formed for the 
 purpose of carrying on commercial or manufacturing 
 enterprises, which have all the features of a partnership, 
 except that there is a substitution of a stockholder's 
 liability for the ordinary liability of partners, are quasi 
 corporations. 
 
 § 514. Nature of corporations. — The fact that a cor- 
 poration is a legal entity, having rights, liabilities and 
 powers, different from those of its members, forms the 
 basis of the law of corporations. The legal attributes 
 that make a corporation an especially advantageous form 
 of business organization are the limited liabilities on the 
 part of its members, and the continuity of its existence 
 notwithstanding changes in membership. When a group 
 of persons are incorporated it means that the state has 
 given to that group a legal personality and that the per- 
 sonality has an existence apart from its members. When 
 a group of men enter into a joint undertaking through 
 the organization of a partnership, all of their property 
 is subjected to the risks of the venture, for a partner is 
 personally liable for the debts of the partnership. In a 
 corooration, however, each member is liable to lose only 
 the amount of money he puts into the given undertaking 
 and the rest of his estate is in no way jeopardized. Thus 
 the modern corporation makes possible many venture- 
 some undertakings into which men would be unwilling 
 to enter under the legal liabilities attaching to partnership 
 activities. Also the modern corporation makes it possible 
 fcr a far greater number of individuals to combine their 
 capital and efforts in a common undertaking than would 
 be possible under the more cumbersome form of part- 
 nership organization. 
 
 The advantages of the continuity of existence are
 
 320 ELEMENTARY LAW [§515 
 
 obvious. In a partnership, whenever a partner dies or 
 sells his interest the partnership is dissolved. Where 
 many persons are involved in a great undertaking cover- 
 ing a long period of time this would materially impair 
 efficiency and hinder progress. These considerations have 
 brought the corporation into being and explain its re- 
 markable growth. The purpose of the law is to con- 
 serve the benefits of this form of business organization 
 and at the same time to guard against certain inevitable 
 abuses growing out of the nature of the organization. 
 
 § 515. Powers of corporations. — The powers of a 
 corporation are restricted to the limits prescribed by the 
 law under or by which it is created. (1) A corporation 
 should have a name by which to make contracts, to take, 
 hold and dispose of property, and by which to sue and 
 be sued. (2) It should have a corporate seal. (3) It 
 should have a fixed place of business for the general 
 management of its aflfairs. (4) It may make its own by- 
 laws, and appoint and remove its agents and officers. 
 
 (5) It should have power to hold such property as is 
 necessary for the achievement of its corporate purpose. 
 
 (6) It should have authority to make all such contracts 
 and agreements as are reasonably necessary to carry out 
 the purposes of the organization. 
 
 § 516. Organization of corporations. — The power to 
 create corporations is vested in the legislative department 
 of the government. The practice and power of creating 
 corporations by special legislative enactments has fallen 
 into disuse, or been abolished in most of the states. Gen- 
 eral laws are passed, under which corporations are organ- 
 ized by the voluntary agreement of individuals. The 
 manner in which corporations are organized is determined 
 by the statutes of each state. Ordinarily articles of in-
 
 § 517] CORPORATIONS 321 
 
 corporation signed and acknowledged by the requisite 
 number of persons are filed in some public office. These 
 articles give the name of the corporation, state the object 
 of its formation, designate the place where it proposes to 
 carry on its business, fix the amount of capital stock and 
 the denomination of the shares of stock, the names and 
 residences of the stockholders, and the names of the 
 directors who are to manage the affairs of the corpora- 
 tion for the first year. When these articles, so prepared, 
 signed and acknowledged, are lodged in the proper office, 
 the corporation begins its existence. If any of its mem- 
 bers assume to contract or act as a corporation before 
 these requisite formalities have been complied with, such 
 acts are not corporate acts, though they may bind the 
 individuals who have so acted. A corporation is con- 
 sidered to be a person in the state under whose laws it 
 is created, and if it wishes to exercise corporate powers 
 in another state, it must submit to and obey such laws 
 and restrictions as may be imposed by the laws of that 
 state. 
 
 A state may refuse to recognize a corporation organ- 
 ized under the laws of another state and refuse to per- 
 mit it to do intrastate business within its borders, and con- 
 sequently it may impose any conditions it sees fit upon 
 any foreign corporations entering the state regardless of 
 how unreasonable and arbitrary the conditions may be. 
 It can not, however, prevent or hinder a foreign cor- 
 poration from engaging in interstate business within its 
 territory. 
 
 § 517. The charter. — The charter, or law under 
 which a corporation is organized, is the measure of its 
 powers. In construing such charters and laws the courts 
 have extended the powers of corporations to all such 
 matters as are essential to preserve their existence and 
 21 — Elem. Law.
 
 322 EI^EMENTARY LAW [5 
 
 K1Q 
 
 to accomplish the purposes of their creation. The 
 enumeration of specific powers imphes the exclusion of 
 others. A corporation can not engage in any business 
 which it has not been authorizecj to do by its charter. 
 Should the officers of the corporation .attempt to engage 
 in such a business they could be enjoined by the stock- 
 holders. Such acts are said to be ultra vires and con- 
 tracts made in support of them would not be binding on 
 the corporation. Thus a corporation organized and char- 
 tered for the purpose of engaging in manufacturing 
 could not engage in the banking business. Any attempt 
 to do so would be ultra vires. 
 
 § 518. Contracts of corporations. — The power of a 
 corporation to make contracts is limited by the charter 
 creating it, or, where it is organized under a general law, 
 by the terms of that law. A contract entered into by 
 a corporation beyond the power so conferred is void, it 
 being ultra vires. It is manifest that a corporation, being 
 an artificial person, can only contract by and through its 
 agents, and the powers of these agents are determined 
 by the laws of the state, or the articles and by-laws of 
 the corporation, or they may be implied from the nature 
 and functions of the officer or agent who acts for the 
 corporation. It was an old rule of law that a corporation 
 could only contract under its corporate seal, but the 
 necessities of commerce have led to an abrogation of the 
 rule, so now it may be said that within its powers to 
 make contracts it may make them in any manner that a 
 partnership or natural person may. It has been said that 
 a contract of a corporation not within its charter or 
 lawful powers is void, but this must be understood with 
 the equitable qualification that where such contract has 
 been executed so that the corporation has received the 
 consideration, and is unwilling or unable to return it, it
 
 § 521] CORPORATIONS 323 
 
 will not be heard to deny the validity of the contract. 
 If it would rescind, it must first do equity. 
 
 §519. Rights of stockholders.— The control of the 
 corporate business is generally vested in the board of 
 directors who, in turn, are usually elected by the stock- 
 holders, each stockholder having as many votes as he 
 owns shares of stock. In operating the business of the 
 corporation the majority rules in cases of disagreement, 
 but the majority must abide by the terms of the charter 
 and by-laws and must act in good faith and without 
 fraud, else the minority stockholders may obtain relief in 
 equity. To secure the individual stockholder in the en- 
 joyment of his rights, the law generally provides that he 
 shall receive a certificate of stock from the corporation 
 representing his interest therein, that he shall have the 
 right to vote and participate in the stockholders' meetings, 
 that he be permitted to inspect the books of the com- 
 pany when he desires to do so in good faith and for a 
 proper purpose, and that he share in the dividends when 
 they are declared. The law will see to it that he is not 
 denied these rights. 
 
 § 520. Dissolution. — The existence of a corpora- 
 tion may be determined: (1) By the expiration of the 
 time limited for its duration. (2) By valid laws repeal- 
 ing the laws under which it was organized. (3) By 
 voluntary dissolution or the abandonment of the purpose 
 for which it was organized. (4) By a decree of for- 
 feiture at the suit of the state for misuser or nonuser 
 of its powers and privileges. 
 
 § 521. Vested rights. — It is a settled rale ^f law 
 that when a private corporation is once formed according 
 to law, it has the right to the free use of all the fran-
 
 324 ELEMENTARY LAW [§ 522 
 
 chises, powers and privileges conferred upon it by the 
 laws in force when it came into existence, and that the 
 provisions of the Constitution of the United States pro- 
 hibiting all legislation which impairs the obligation of 
 contracts protects it in the enjoyment of these rights. 
 The assertion and enforcement of this rule, which im- 
 posed severe restrictions upon the legislative power, has 
 led to a radical change in the legislation of the various 
 states, and now it is the practice to insert in all laws 
 authorizing the formation of corporations a clause reserv- 
 ing the right of the legislature to amend, alter or repeal 
 such laws. Where a corporation charter is repealed, how- 
 ever, the right of the stockholders to the property must 
 be preserved, else it will be void as a taking of property 
 without due process of law. 
 
 § 522. Deeds of corporations. — Corporations, if by 
 their charters they may hold real estate, may convey the 
 same, under the corporate seal and by the officer desig- 
 nated in the laws of the corporation to sign the deed in 
 its name. 
 
 § 523. Fraud by officers of the corporation. — Offi- 
 cers of corporations occupy the relation of trustees and 
 agents to both the corporation itself and to the individual 
 stockholders, and they are held to discharge their duties 
 with the fidelity and integrity required of other trustees 
 or agents. Wherever a fraud is committed by them, 
 the right of action to redress the same is in the cor- 
 poration, if the wrong affects the corporate body as a 
 whole, or in individual stockholders if the wrong is to 
 individual interests. In equity the suit for a corporate 
 wrong may be brought by individual stockholders for the 
 benefit of all, if the wrongdoers are the governing officers
 
 § 524] CORPORATIONS 325 
 
 themselves, or if the governing officers refuse to bring 
 the suit. 
 
 Among the frauds that may be committed by cor- 
 porate officers for which the stockholders may have re- 
 dress are the following^: 
 
 Where the governing officers persistently and know- 
 ingly exceed the corporate powers. 
 
 Where the officers refuse to furnish proper informa- 
 tion or give false statements. 
 
 Where access to the books of the corporation is 
 denied. 
 
 Where governing officers become purchasers from or 
 sellers to the corporation, to its detriment. 
 
 Where the governing officers allow secret advantages 
 to part of the stockholders or themselves, to the injury 
 of other stockholders, or where they misuse or waste the 
 assets. 
 
 § 524. Public service corporations. — There is a 
 class of duties that are assumed by private persons or 
 corporations, frequently in consideration of the grant to 
 them of certain privileges at the hands of the state. 
 These duties are generally, if not wholly, for the primary 
 benefit of individuals of the community, rather than for 
 the benefit of the public as a whole. Among these are 
 the duties of common carriers, innkeepers, water com- 
 panies and gas companies. Such persons or corporations 
 are bound to permit the enjoyment of their privileges to 
 all individuals of the community upon impartial regula- 
 tions and for a reasonable consideration, and for a viola- 
 tion of such duties they may be held liable at the suit 
 of an individual specially injured. Where, as in case of 
 railroads, water and gas companies, valuable public 
 rights have been granted to the person or corporation, 
 the courts may sometimes compel by mandamus the
 
 2)26 ELEMENTARY LAW [§ 524 
 
 performance of the public duty. There is, however, a 
 margin of discretion within which there may be reason- 
 able discrimination. For example, a common carrier or 
 innkeeper may exclude a person who is dangerous, or 
 offensive to the sense of decency of others. Separate 
 accommodations may be lawfully maintained for women 
 and for men.
 
 PART VII 
 
 THE LAW OF PRINCIPAL AND AGENT AND 
 OF MASTER AND SERVANT 
 
 CHAPTER XL 
 PRINCIPAL AND AGENT 
 
 Sec Sec 
 
 525. Principal and agfent and 529. Undisclosed principal. 
 
 master and servant 530. Duties between principals 
 
 526. Agency in generaL and agents. 
 
 527. Authority of agents in 531. Termination of agency. 
 
 special calling. 532. Powers of attorney. 
 
 528. When principal is bound 
 
 by act of his agent 
 
 § 525. Principal and agent and master and servant 
 in general. — Agency in its broadest sense means that 
 relationship that is established when one person acts for 
 or represents another. Most of the things that men 
 may do they may do through agents or servants. A cor- 
 poration must of necessity act through agents only. The 
 same is true of the state in which case the agents are 
 called public officers. In the present age of gigantic 
 business enterprise single firms employ hundreds and 
 even thousands of employes to act for them in one 
 capacity or another. Consequently this relationship, 
 usually created by contract, has become of great practical 
 importance and a rather definite set of legal rules has 
 been developed in relation thereto. 
 
 The law of agency in its broad sense is divided into 
 two branches, principal and agent and master and servant 
 
 327
 
 328 ELEMENTARY I,AW [§ 526 
 
 The first has to do with that relationship where the 
 representative is engaged in making contracts for his 
 employer. Here there are three parties concerned, the 
 principal, the agent and the third party with whom the 
 agent deals for his principal. The second branch deals 
 with those relationships where the representative performs 
 labor or mechanical acts for his employer. Primarily 
 only two persons are involved in this relationship, but 
 should the servant injure some third party while in the 
 course of his employment then three persons become 
 involved. 
 
 The main problems presented by this division of the law 
 are the determination of when a principal or master is liable 
 to third parties for the representations or acts of his agent 
 or servant, and what are the rights and duties between 
 principal and agent and master and servant respectively. 
 
 § 526. Agency in general. — Individuals and corpo- 
 rations are bound by contracts made in their behalf by 
 their authorized agents. The necessities of commerce 
 demand that most of the business of the world be done 
 through agents. Any one capable of acting for himself 
 may be an agent; a minor of sufficient capacity may be 
 an agent and make contracts which will bind his principal. 
 The relation of principal and agent may be created by 
 writing, by parol or it may be implied from circumstances. 
 In some states, however, where the contract itself must 
 be in writing, then the authority to the agent must be 
 in writing. Also where the contract must be under seal 
 as in the case of conveyance of real property, the 
 authority must be granted in writing and under seal. 
 This is known as the power of attorney. An agent can 
 not assume incompatible duties; he can not be agent of 
 buyer and seller at the same time, unless by consent of 
 both principals, nor can he be employed to do an unlaw-
 
 § 527] PRINCIPAL AND AGENT 329 
 
 ful act, nor to act in place of another in a matter of 
 personal trust. An attorney, an author, an artist, a 
 physician, whose personal skill is engaged, can not sub- 
 stitute an agent to do his work. So generally an agent 
 can not employ a substitute, unless expressly or impliedly 
 authorized to do so. When, however, the nature of the 
 employment and the magnitude and character of the busi- 
 ness calls for it, he may employ assistants whose acts will 
 bind his principal. An attorney at law, an attorney in 
 fact, a broker, an auctioneer, a factor, a partner, a ship's 
 master, a ship's husband, these are all agents having 
 power to bind their principals in matters coming within 
 the scope of their respective employments. An attor- 
 ney at law is an agent employed to conduct and manage 
 an action at law or suit in equity. An attorney in fact 
 is one who is by a power of attorney authorized to do 
 some specific act or acts for his principal. A broker is 
 one whose business it is to bring together parties who 
 desire to deal with one another ; he is the agent of both par- 
 ties and he receives by way of compensation a commis- 
 sion. An auctioneer's business is to act for seller and 
 buyer in selling goods at public outcry. When a sale is 
 closed he can bind both parties by signing a memorandum 
 of the terms. A factor or commission merchant is one 
 who sells goods for persons who make consignments to 
 him. 
 
 § 527. Authority of agents in special calling. — A 
 ship's husband is one employed by the owners to manage 
 the affairs of the ship while it is at a home port. A 
 ship's master has similar charge of the ship and its affairs 
 while prosecuting its voyage. Partners are mutual agents 
 for one another in all matters pertaining to the conduct 
 of the partnership business. An agent may act generally 
 in some particular business, in which case he has a
 
 330 ELEMENTARY LAW [§ 528 
 
 liberal discretion, or he may be employed to do a specific 
 thing in a prescribed way, in which case he is a special 
 agent. Where the authority under which an agent as- 
 sumes to act is in writing the court must construe it and 
 determine its extent; where the agency is created by parol 
 or is implied from circumstances it is for the jury to 
 determine whether a given act was or was not authorized 
 by the principal. An authority to do a certain thing 
 carries with it an authority to make use of all the usual 
 and necessary means to effectuate the purpose intended, 
 as where an agent is authorized to sell property he may 
 receive the money; if he is to settle losses with an insur- 
 ance company he may arbitrate the claims; if he is to 
 sell a chattel he may warrant it as to quality and sound- 
 ness — in short, the authority of an agent covers all the 
 settled usages of trade which pertain to the business of 
 
 his agenqr. 
 
 § 528. When principal is botind by act of his agent. 
 •—Where persons dealing with an agent know that his 
 authority is in writing, they are bound by its terms, 
 whether they see fit to examine it or not If an agent 
 has a written authority, his principal can not, by private 
 or secret instructions to his agent, change its terms so as 
 to affect those who deal with him. It sometimes happens 
 that the authority is ambiguous in its terms, and the 
 agent has no opportunity to consult his principal. If 
 he misconstrues the authority in good faith, his principal 
 is bound by his act It is competent for the principal 
 to enlarge the agent's authority by subsequent parol in- 
 structions. And if a principal by words or acts induces 
 others to believe that the agent's authority is greater than 
 is expressed in the terms of the appointment, he will be 
 [bound by the agent's acts to the extent that his conduct 
 !has led others to deal with his agent The authority
 
 § 530] PRINCIPAI, AND AGENT 331 
 
 of the agent is more liberally construed when it is to be 
 gathered from irregular correspondence, or the conduct 
 of the parties, than where it is particularly defined by a 
 written instrument prepared for the purpose. If an agent 
 acts in excess of his authority, his act may be ratified 
 by the acquiescence of the principal. If by the usages 
 of a bank or a merchant, cashiers or other employes are 
 allowed to indorse paper and do other acts in further- 
 ance of the business in which they are engaged, the princi- 
 pal will be bound. Declarations of an agent concerning 
 the transaction in which he is acting for his principal 
 will be binding on the principal, if made at the time and 
 as a part of the transaction. But after the business is 
 closed, the agent can make no such binding declarations. 
 Factors and ships' masters may in case of urgent need 
 dispose of perishable goods, in a way not authorized by 
 the owner. They may also incur liabilities that will 
 create a lien upon the goods and fix a personal responsi- 
 bility upon their principal also. 
 
 § 529. Undisclosed principal. — Where the agent 
 makes the contract in his own name without disclosing 
 the name of his principal, while the agent is himself 
 liable, the principal is also liable, and the third party upon 
 discovering him may hold him liable upon the contract, 
 although he can not hold both the agent and the undis- 
 closed principal. He must elect which one he will hold. 
 So the principal may come in and claim the benefits of 
 the contract. However, if the principal or the third party 
 have settled in good faith with the agent, they are thereby 
 discharged from further responsibility. The theory of 
 the undisclosed principal is not applicable to contracts 
 under seal nor to negotiable instruments. 
 
 § 530. Duties between principals and agents. — The
 
 332 ELEMENTARY LAW [§ 531 
 
 relation of principal and agent is one of trust. The agent 
 is bound to the same degree of fidelity and good faith as 
 any other trustee. There are, however, certain addi- 
 tional obligations in this relation, owing to the fact that 
 both principal and agent have reciprocal duties to per- 
 form, whereas the ordinary relation of trustee and bene- 
 ficiary calls for performance of duties by the trustee only. 
 The principal owes the duty to the agent not to lead him 
 into danger or loss. For instance, a master is liable if 
 he subjects his servant to unknown risks in machinery 
 or buildings, and a principal is liable if he causes his 
 agent innocently to do a wrong to another and thereby 
 incur loss. These and the like may amount to frauds 
 upon the servants or agents. 
 
 The duties of an agent can not ordinarily be delegated. 
 In making contracts for his principal, he should disclose 
 the fact that he is an agent, otherwise the person who 
 deals with him without a knowledge of that fact may 
 treat him as a principal. An agent who takes employ- 
 ment from another contracts for the use of reasonable 
 skill and diligence in conducting the business of his princi- 
 pal, and if loss occurs from the fraud or insolvency of 
 a customer, he will not be liable, if he exercised such 
 skill and diligence. He is chargeable with all profits he 
 may make on investments of his principal's money, and 
 if he fails to account promptly for moneys received, he 
 may be chargeable with interest. 
 
 § 531. Termination of agency. — The contract of 
 agency may be determined : ( 1 ) By the expiration of the 
 time limited by the employment. (2) By revocation by 
 principal, except in cases where the agent has an inter- 
 est in the business. (3) By the agent renouncing the 
 agency. (4) By death, bankruptcy or insanity of princi- 
 pal. (5) By destruction of subject-matter, as where one
 
 § 532] PRINCIPAL AND AGENT 333 
 
 is custodian of buildings which are destroyed. (6) By 
 the performance of the task for which the agency was 
 created. 
 
 § 532. Powers of attorney. — A person holding a 
 power of attorney for the purpose should not, when con- 
 veying land, affix his own name, but the name of the 
 principal to the conveyance. Powers of attorney author- 
 izing the conveyance of real estate should be signed and 
 acknowledged and recorded, so that purchasers dealing 
 with the attorneys may know the extent of their powers.
 
 CHAPTER XLI 
 
 MASTER AND SERVANT 
 
 Sec. 
 
 
 Sec. 
 
 533. 
 
 Growth of the relation. 
 
 543. 
 
 534. 
 
 Apprentices. 
 
 
 535. 
 
 Who is a master or ser- 
 vant? 
 
 544. 
 
 536. 
 
 Independent contractor. 
 
 545. 
 
 537. 
 
 The contract between 
 
 
 
 master and servant. 
 
 546. 
 
 538. 
 
 Termination of the rela- 
 
 
 
 tion. 
 
 547. 
 
 539. 
 
 Discharge by the master. 
 
 
 540. 
 
 Abandonment by the ser- 
 vant. 
 
 548. 
 
 541. 
 
 Wrongs independent of 
 
 549. 
 
 
 contract. 
 
 550. 
 
 542. 
 
 Liability of third persons 
 
 551. 
 
 
 to the master. 
 
 552. 
 
 Liability of third persons 
 to the servant. 
 
 Master's liability for in- 
 jury to others. 
 
 Intentional and uninten- 
 tional injuries. 
 
 Servant's liability for in- 
 juries to others. 
 
 Master's liability to the 
 servant. 
 
 Duties of master to ser- 
 vant. 
 
 Risks assumed by servant. 
 
 Fellow servants. 
 
 Vice principal. 
 
 Servant's liability to mas- 
 ter. 
 
 § 533. Growth of the relation. — The relation of 
 master and servant may exist between father and child, 
 guardian and ward, husband and wife, or in fact any 
 persons capable of contracting. The relation arises out 
 of contract made between them, by which the master 
 acquires a legal authority and control over the servant. 
 Originally, it was only a family right of no great im- 
 portance, the servant always being a member of the mas- 
 ter's household. But with the vast development of busi- 
 ness enterprises, the relation has been expanded to enor- 
 mous dimensions, and is now one of the most important 
 in the business world. It applies to every form of occu- 
 pation in which one person's work is subject to the con- 
 trol and direction of another to whom he is responsible. 
 
 334
 
 § 5351 MASTER AND SERVANT 335 
 
 § 534. Apprentices. — An apprentice is one who is 
 bound out to a master to learn some trade, business or 
 profession, the master being also bound to instruct and 
 initiate him in the occupation. An apprentice may be 
 either an adult or a minor. So far as an adult is con- 
 cerned, he is bound by whatever contract he makes, and 
 his rights and liabilities must be determined therefrom. 
 So far as infants are concerned, the matter is regulated 
 by statute in the several states which must be exactly 
 followed. It is usual to require the articles of apprentice- 
 ship to be recorded, and they must be signed by the 
 parent or guardian, or in their absence they must be 
 approved by the probate court. If the infant is over 
 fourteen years of age, his assent and signature are gen- 
 erally required. The master acquires some of the rights 
 of a parent over the infant apprentice, such as the right 
 of moderate restraint and punishment, and being in loco 
 parentis the master must care for the training, health and 
 safety of the apprentice. In other respects, the rights 
 and liabilities are the same as for ordinary masters and 
 servants. 
 
 § 535. Who is a master or servant? — It is not nec- 
 essary that there be a definite term of service, nor that 
 any wages be paid or due. And the relation may exist 
 even where the services were volunteered, if they were 
 of such nature that a contract can be implied. The test 
 in all cases is the sort of control that is exercised over 
 the work. The relation of master and servant exists 
 when one has the right to control and direct the work 
 of another who is employed to render personal service 
 otherwise than in pursuit of a separate calling. The 
 employer may contract that the employe shall undertake 
 to bring about a certain result and shall assume all re- 
 sponsibility for the means and method of the work. In
 
 336 KLSMENTARY LAW [§ 536 
 
 such case the employe is not a servant, but an inde- 
 pendent contractor. 
 
 § 536. Independent contractor. — A person is not a 
 servant, but an independent contractor, who is employed, 
 but is not subject to the order or control of the employer 
 as to the method or means to be taken in doing the work. 
 The general rule is that an employer is not responsible 
 for the acts of an independent contractor. If, however, 
 the employer dictates the method, or retains any direction 
 or control over the contractor, he will to that extent be 
 answerable for any injuries traceable to him. And if 
 the work is unlawful in itself, or must necessarily cause 
 the damage, the employer may be held liable jointly with 
 the contractor. An independent contractor's liability to 
 the employer for wrongs is no different from that of any 
 stranger, except that he is bound to perform his contract. 
 
 § 537. The contract between master and servant. — 
 
 A general hiring without limitation is at common law a 
 hiring by the year. From custom, or from the times of 
 payment, the period may be held to be monthly, weekly 
 or daily. If the time is expressly fixed, it controls, and 
 both master and servant are bound to the performance of 
 the contract. If the contract is for doing what is illegal 
 it is void ; so, also, if the hiring is for an immoral pur- 
 pose; and if any essential part of the consideration is 
 illegal the whole contract is void. Contracts for personal 
 services can not be specifically enforced, nor can they be 
 assigned or transferred without consent of both parties. 
 Such contracts are always subject to the implied condi- 
 tion that the person shall be able to perform the service, 
 and if he is disabled without his fault he is excused from 
 further performance. In the absence of stipulation or
 
 § 540] MASTER AND SERVANT 337 
 
 Statute to the contrary, wages are payable at the end of 
 each term of service. 
 
 § 538. Termination of the relation. — In addition to 
 the termination by expiration of the time of service, or 
 the death or disablement of either party, the contract of 
 service may be put to an end, (1) by the master's dis- 
 charging the servant, or (2) by the servant's abandoning 
 the service. 
 
 § 539. Discharge by the master. — The master may 
 discharge the servant for sufficient cause. Just what is 
 sufficient cause must depend upon the facts in each case. 
 Generally, however, it is sufficient cause for discharge 
 that the servant is guilty of disobedience, immoral con- 
 duct, incompetency, habitual negligence, drunkenness, 
 fraudulent conduct and the like. In case of discharge 
 for cause the general rule is that the servant is entitled 
 to payment for what he has done up to the time of dis- 
 charge, but is not entitled to any damages for the un- 
 expired term. 
 
 If the discharge be without good cause, the servant 
 is entitled not only to payment for the work actually 
 done, but to damages for the loss of his wages during 
 the unexpired term. He is bound, however, to seek other 
 employment. The measure of damages therefore is the 
 unpaid balance of wages for the entire period, less what 
 he might have earned elsewhere. 
 
 * 
 
 § 540. Abandonment by the servant. — The servant 
 is justified in abandoning the service, if he suffers ill 
 usage at the hands of the master, or if the master refuses 
 to allow him to work. These faults of the master are 
 equivalent to a discharge, and the liability is measured 
 
 accordingly. 
 
 22 — Elem. Law.
 
 338 ELEMENTARY LAW [§ 541 
 
 Sickness or inevitable accident disabling the servant 
 will justify an abandonment by the servant, but will 
 entitle him to payment only for what he has actually 
 done. 
 
 For an unjustifiable abandonment of service by the 
 servant during a term of service, it was formerly the 
 rule that as the price was entire and to be paid for the 
 whole service, there could be no recovery for a part. The 
 rule now in many states is that the servant may recover 
 a proportionate part of the wages, less whatever dam- 
 ages the abandonment caused to the master. 
 
 § 541. Wrongs independent of contract. — We pass 
 now to the consideration of the tortious wrongs that 
 involve the relation of master and servant. Such wrongs 
 may create liability in the following ways, which will be 
 considered in order : ( 1 ) Liability of third persons to 
 the master. (2) Liability of third persons to the servant. 
 (3) Master's liability for injury to others. (4) Servant's 
 liability for injury to others. (5) Master's liability to 
 servant for injuries (a) by master, (b) by persons for 
 whom the master is answerable. (6) Servant's liability 
 to master for injuries (a) to master, (b) to others. 
 
 § 542. Liability of third persons to the master. — A 
 master has an action against one who wrongfully entices 
 away his servant or prevents the performance of the 
 servant's duty to the master; and this even though the 
 relation of master and servant be determinable at will. 
 One who harbors another's servant, intending thereby to 
 wrongfully deprive the master of the service of the ser- 
 vant, may be liable. Where the wrong is one causing 
 direct loss to the servant and consequential loss to the 
 master, as in the case of personal injury to the servant, 
 each may recover for his own damages.
 
 § 545] MASTER AND SERVANT 339 
 
 § 543. Liability of third persons to the servant. — 
 
 A servant being the inferior has no such interest in the 
 master as will sustain an action by the servant for con- 
 sequential damages from an injury to the master. The 
 servant has a right of action against any one who by 
 wrongful acts procures his discharge, provided he can 
 show damages. 
 
 § 544. Master's liability for injury to others. — The 
 
 question here is, for what acts and omissions of the 
 servant is the master liable to other persons? That the 
 master is liable at all is upon the maxim, "He who acts 
 through another acts himself." The wrongs done may 
 have been either intended or unintended by master or 
 servant, and the servant may have acted in violation of 
 or obedience to the master's orders. The persons in- 
 jured may be strangers, to whom no special duty was 
 owing, or persons to whom the master was under special 
 obligation, such as passengers or guests at inns. Upon 
 the nature of the wrong and the kind of duty owing 
 depends the liability of the master. 
 
 § 545. Intentional and unintentional injuries. — The 
 general rule is that where the servant's acts are within 
 the real or apparent scope of his employment, the master 
 is responsible; otherwise not. Hence for wilful and 
 malicious acts of the servant the master is not generally 
 liable, for such acts can not be supposed to be authorized. 
 The rule for liability becomes more stringent, however, 
 if the master is under some special duty to the injured 
 person, as in case of a passenger, and has delegated the 
 performance of that duty to the ser\^ant. In such case 
 the master is responsible for all injuries done by the ser- 
 vant, during the time of the service; hence the master
 
 340 ELEMENTARY LAW [§ 546 
 
 may be liable even for malicious acts done in express 
 violation of orders. 
 
 § 546. Servant's liability for injuries to others. — 
 
 For any negligence or unlawful act of a servant he is 
 liable to the person injured whether the master is liable 
 or not, and no matter what is the relation of the injured 
 person to the master. There are cases in which the ser- 
 vant and master are both held liable, but in which, as 
 between themselves, the master is liable over to the ser- 
 vant for any loss suffered by the servant. In such cases 
 the servant must have acted in good faith and in obedi- 
 ence to the master's orders. 
 
 § 547. Master's liability to the servant. — First, as 
 to injuries by the master himself. While it is a privilege 
 of the master to give a "character" for the servant, the 
 servant suffers no legal damage if the certificate is re- 
 fused, even though the refusal be arbitrary and unjust. 
 For any injury resulting to a servant from the direct 
 personal act of the master, the master is liable to the ser- 
 vant the same as though no such relation existed. For 
 any failure of the master to perform the duty he owes 
 to his servant, he is liable to the servant if injury results 
 therefrom. 
 
 § 548. Duties o£ master to servant, — The master 
 owes the dutv to his servant to exercise ordinarv care 
 in the following respects : In providing and maintaining 
 a safe place to work and safe appliances to work with, 
 in taking due precautions to prevent accidents, in guard- 
 ing the servant against dangers unknown to him, in re- 
 fraining from exposing the servant to unnecessary or 
 unknown dangers, in employing as his fellow servants 
 only competent persons, and in employing these in suf-
 
 § 551] MASTER AND SERVANT 341 
 
 ficient number. These are the principal duties, though 
 others might be named. If the master exercise ordinary 
 care in discharging his duties, he is not hable, though the 
 servant be injured. 
 
 § 549. Risks assumed by servant. — The servant as- 
 sumes all risks that he ought to know are incident to 
 the discharge of his duties, all risks from negligence and 
 wrongs of his fellow servants, and he is bound to use 
 care himself. To some extent the servant will be excused 
 for incurring a danger under order of the master, but not 
 if the danger be glaring, nor if it is fully known to the 
 servant and voluntarily assumed. As a general rule, 
 where the opportunities of the servant for discovering 
 danger are equal to the master's, the master is not liable. 
 
 § 550. Fellow servants. — If the master has exer- 
 cised due care in selecting and retaining servants, he has 
 done his duty. If, nevertheless, injury results to one ser- 
 vant by the wrongful act or omission of another servant, 
 the master is not liable. It is essential, however, that 
 the servants shall have been within the same general em- 
 ployment, for if two servants are engaged in occupations 
 wholly independent of each other, they are not fellow 
 servants. And it is to be further noted that the fellow- 
 servant rule applies only to the servants personally, so 
 that if the wife or child of a servant be injured by 
 another servant, the master is held liable for both the 
 direct and consequential injury. 
 
 § 551. Vice principal. — If, however, the person 
 causing injury to the servant be discharging a duty which 
 was owing from the master himself to the servant, he is 
 regarded to that extent as the master. The name usually 
 given is vice principal. For any failure to discharge
 
 342 EIvEme;ntary law [§ 552 
 
 the duties he owes to his servant the master is liable, 
 whether the act or omission which causes the injury be 
 his own or his vice principal's. A person may at the 
 same time be a vice principal and fellow servant; the 
 character of the act done determines in what capacity he 
 acts. 
 
 § 552. Servant's liability to master. — For any 
 wrongful act, neglect or incompetency of a servant, which 
 causes injury to the master's person or property, the 
 servant is liable to the master, provided the master is not 
 also in fault. If a servant exceeds the authority con- 
 ferred upon him by the master, and so involves the mas- 
 ter in loss, the servant is liable. And a servant is liable 
 to the master for any damages which the master has 
 been compelled to pay to a third person on account of 
 the wrongful act or default of the servant, provided the 
 master is himself free from fault.
 
 PART VIII 
 
 THE LAW OF PERSONS AND DOMESTIC 
 
 RELATIONS 
 
 CHAPTER XLII 
 
 HUSBAND AND WIFE 
 
 Sec. Sec. 
 
 553. The law of persons and 560. Duties and rights of hus- 
 
 domestic relations. band and wife. 
 
 554. Right to marry. 561. Divorce. 
 
 555. Fraud between parties en- 562. Injuries between husband 
 
 gaged to be married. and wife. 
 
 556. Marriage. 563. Fraud between husband 
 
 557. Illegal marriage. and wife. 
 
 558. Marriage ceremony. 564. Injuries by third person. 
 
 559. Foreign marriages. 
 
 § 553. The law of persons and domestic relations. 
 
 — The law of domestic relations deals with the relation- 
 ships of husband and wife, parent and child, and guardian 
 and ward, and the various duties and rights flowing 
 therefrom. The family is said to be the unit of society 
 upon which all else depends. It becomes necessary there- 
 fore for such relationships and their consequent rights 
 and duties to be carefully and definitely regulated by 
 the state in the common interests of society, and such 
 is the function of this division of the law. 
 
 The law of persons has to do with the alteration of 
 certain general rules of law when applied to certain 
 classes of persons, as infants, married women, etc. For 
 obvious reasons these questions can be conveniently dealt 
 
 343
 
 344 ELEMENTARY LAW [§ 554 
 
 with in connection with domestic relations which give 
 rise to most of the classes of persons affected by this 
 branch of the law. So much of this branch of the law 
 as is concerned with the capacity of the infant to make 
 contracts has been dealt with under the law of that sub- 
 ject. 
 
 § 554. Right to marry. — A refusal to perform a 
 promise of marriage is only a breach of contract, the 
 remedy for which is in general the same as for breach 
 of any other contract. It sometimes happens that a fraud 
 becomes mingled in the making or breaking of the 
 promise, and in such case the whole becomes a tort For 
 example, if a man of negro blood, pretending to be white, 
 should induce a white woman to enter into an engage- 
 ment for marriage with him, such marriage being illegal, 
 there would be a wrong whether the marriage ceremony 
 were performed or not. 
 
 If third persons wrongfully interfere with mutual 
 promises of marriage and break the engagement an 
 action lies in favor of the one injured. But, generally, 
 such a wrong will be one that is actionable upon some 
 other ground. 
 
 § 555. Fraud between parties engaged to be mar- 
 ried. — This relation establishes a confidence which, 
 though not of so high a degree as marriage, may be the 
 basis for accomplishing a wrong. The confidence is such 
 as will quiet any apprehension of fraudulent practices. 
 If a man who is incapacitated to marry, as by already 
 having a wife, should engage himself to marry a woman, 
 and should induce her to consummate a supposed mar- 
 riage, he would be liable in damages to her. It would 
 not be necessary to show any active misstatement or 
 deception. The relation of confidence precludes the neces-
 
 § 557] HUSBAND AND WIFE 345 
 
 sity of any inquiry by the woman. And if, under a 
 promise of marriage which he does not intend to fulfill, 
 a man accomplishes the seduction of a woman, damages 
 are given on account of the breach of trust. 
 
 Where there is an engagement to marry, the parties 
 are each entitled to take into consideration the pecuniary 
 circumstances of the other. If one thereupon should 
 make a secret conveyance of property, so that the mar- 
 riage is of less pecuniary benefit to the other, there is a 
 right of action for such fraudulent practice. 
 
 And if, while under engagement to marry, one should 
 use the relation of confidence for the purpose of obtain- 
 ing the other's property, the law affords redress in an 
 action for damages or to recover the property. 
 
 § 556. Marriage. — Under this head there are to be 
 considered, first, the formation of the relation; second, 
 the rights, duties and liabilities that arise out of mar- 
 riage, and third, its dissolution. 
 
 Marriage is defined to be the lawful union of one man 
 with one woman, to the exclusion of all others, by a 
 bond that can not be dissolved by the act of either or 
 both, and can only be dissolved by the authority of the 
 state. If the union be made as a temporary, arrange- 
 ment, to be ended at the pleasure of either party, it is 
 not a marriage. 
 
 §557. Illegal marriage.— In order to be a valid 
 marriage, the union must be lawful. Some persons are 
 by law incompetent to marry and marriage between cer- 
 tain classes is prohibited. The subject is controlled by 
 statute of the various states, and the legislation has not 
 been harmonious. Some of the principal grounds upon 
 which marriages are prohibited will be stated. 
 
 The marriage of near relations is forbidden, the
 
 346 ELEMENTARY LAW [§558 
 
 degrees varying in the several states. Marriage between 
 a black and a white person is in many states void, in 
 some others is punishable criminally. If either party is 
 physically incapable of marriage, it is null and void. If 
 either party have a wife or husband living, the second 
 marriage is void. A marriage procured by force or cer- 
 tain kinds of fraud is voidable at the option of the party 
 wronged. 
 
 § 558. Marriage ceremony. — ^The law contemplates 
 that the marriage ceremony shall be attended with some 
 degree of publicity. Usually, only a judicial officer or 
 minister of the gospel is by law allowed to solemnize 
 marriage. A license by the state must usually be obtained. 
 Violation of such provisions does not generally invalidate 
 the marriage. Any marriage may be valid, if the parties 
 in the presence of witnesses declare that they then and 
 there take each other as husband and wife. 
 
 § 559. Foreign marriages. — It is a well-settled prin- 
 ciple that a marriage valid where it is celebrated! will be 
 deemed valid everywhere, and one invalid where cele- 
 brated will be deemed invalid everywhere. This, however, 
 is subject to the exception that if the marriage be deemed 
 immoral or incestuous in the domicile of the parties, and 
 they go into another country merely to evade the law of 
 their own, the marriage will be void. 
 
 § 560. Duties and rights of husband and wife. — 
 The duty of the husband is to love and protect the wife, 
 and to provide for her according to his means and condi- 
 tion. The duty of the wife is to love, • honor and obey 
 the husband. The husband has the right to select the 
 domicile, and it is the wife's duty to follow him. The 
 husband has not now any right to chastise or restrain the 
 wife, whatever may be her fault, and neither can be
 
 § 561] HUSBAND AND WIFE 347 
 
 compelled to live with the other. It is the duty of the 
 husband to provide for the offspring of the marriage, 
 according to his station. By reason of the fiction of legal 
 unity of husband and wife, and also upon grounds of 
 public policy, husband and wife can not be compelled to, 
 and will not be permitted to, testify as to communications 
 made between them. And formerly they were not allowed 
 to be witnesses for or against each other. 
 
 At common law a husband was liable for his wife's 
 antenuptial debts, and the wife could make no contract 
 that bound her. In most of the states legislation has 
 greatly enlarged the powers and liabilities of married 
 women, so that now ability seems to be the rule and 
 disability the exception. A wife may be the agent of 
 her husband, or the husband may be agent for the wife. 
 A wife may always bind her husband for necessaries 
 furnished her, and what these are depends largely upon 
 the condition of the parties. Formerly, a husband was 
 liable for all wrongs done by his wife; now, however, 
 keeping pace with the enlargement of her rights and 
 powers, a married woman is liable for her own wrongs, 
 and the husband is not liable except for such as he was 
 party to. The law now is in nearly all states that a mar- 
 ried woman may own property the same as if unmar- 
 ried, and but few limitations are placed upon her power 
 to dispose of her property. 
 
 § 561. Divorce. — Many of the duties owing from 
 a husband or wife to the other are of imperfect legal 
 obhgation, in that performance of them can not be en- 
 forced, but for some of the grosser violations of the 
 marriage contract, the law gives a remedy by divorcing 
 the parties. What shall be cause for divorce is the sub- 
 ject of diverse statutes in the various states. Generally 
 the causes are adultery, abandonment, failure to provide,
 
 348 ELEMENTARY LAW [§ 562 
 
 or cruelty. The suit to put an end to the marriage con- 
 tract differs from the ordinary suit upon contract, in that 
 the plaintiff's domicile, and not the defendant's, fixes the 
 place for beginning suit. The reason for this is that 
 there is more than a contract involved, namely, the legal 
 status of the party complaining. On account of the 
 interest the state has in the marriage, the parties have no 
 legal right to agree upon a decree of divorce, but the 
 court may, and usually does, hear some evidence. 
 
 If cause for divorce exists, the court usually allows 
 alimony to the wife, if she is the innocent one. It is 
 usual in estimating alimony to base it upon the value of 
 the wife's interest in her husband's property. 
 
 § 562. Injuries between husband and wife. — At 
 
 common law the legal existence of the wife merged in her 
 husband. No suit in her name could be maintained un- 
 less he joined. There was scant redress by civil suit for 
 any injury done by one to the other, and but few injuries 
 were punished criminally. As has been said, the tendency 
 of legislation has been to destroy the legal fiction that 
 husband and wife are one person, and to treat them as 
 separate individuals, especially in their property rights. 
 In some states statutes have placed the wife on such a 
 footing that she can sue her husband for any civil wrong, 
 the same as if unmarried. In others the courts have been 
 conservative, and have restrained what was apparently the 
 liberal intention of the legislature, and the wife is not 
 allowed to sue her husband for many civil wrongs. 
 
 § 563. Fraud between husband and wife. — To this, 
 the most confidential to all relations, the law gives a 
 jealous protection. Communications between husband 
 and wife are held sacred, and no matter how great may 
 be the interests that seem to demand it, the law will not
 
 § 564] HUSBAND AND WIFE 349 
 
 compel a disclosure. Nevertheless, as between them- 
 selves, no legal remedy is given for a violation of such 
 confidences, for it is deemed better policy to leave the 
 observance of confidences between husband and wife to 
 their own sense of what is proper. Any attempt at legal 
 redress would probably cause greater evils than it would 
 cure. 
 
 So far as concerns dealings between husband and 
 wife in relation to their property interests, it is evident 
 that they must always, to a greater or less degree, be 
 affected by the influence of the marriage relation. While 
 the law recognizes with approval a reasonable use of such 
 influence, no unfair use of it will be permitted. As a 
 rule, the man being the stronger and more experienced 
 in business affairs, there is less reason to suspect an 
 undue controlling influence on the part of the wife. On 
 the other hand, a husband is presumed to have a great 
 influence and control; so that, in any transactions as to 
 the wife's property, the law will examine most closely, 
 and if there be found any evidence whatever of unfair- 
 ness or bad faith, relief will be granted. 
 
 § 564. Injuries by third person. — The right to re- 
 cover for injuries done by a third person to husband or 
 wife depended originally on the right each had to services 
 of the other, and the damage consisted in the loss of 
 such services. 
 
 From the fact that at common law a wife was the 
 inferior person, it followed that she suffered no legal 
 damage by the loss of her husband's society and services, 
 and hence she was not permitted to recover damages for 
 any personal injuries to him, nor for his being enticed 
 away whereby she was deprived of support. 
 
 With the statutory enlargements of the wife's rights 
 the courts have gradually enlarged her rights as to her
 
 350 ElvEMSNTARY LAW [§ 564 
 
 husband's society, until now it is generally held that the 
 right to society and not the right to services is the true 
 basis of recovery, and that a woman as well as a man 
 may maintain an action for deprivation of the right. 
 
 At common law a husband had a legal right in the 
 serv^ices of his wife, and could recover damages for any 
 injury to his right. The basis of recovery for the hus- 
 band has been gradually changed, as in the wife's case, 
 and now rests principally upon the right to the wife's 
 society. So that now a husband may recover against 
 one who, by artifice and fraud, alienates the affections of 
 his wife even though she continue to reside with him 
 and serve him. If one brings about the alienation of 
 affection of another's wife, or a separation, it matters 
 not how far the wife was blameworthy. The wrong to 
 the husband is the same whether the wife consented or 
 not. Mere giving shelter to a wife who has left her hus- 
 band will not raise a liability. But if any influence is 
 used over the wife to continue the separation, or if 
 access is denied to the husband, he may have an action. 
 If, however, the husband has given cause for divorce, he 
 can not be heard to complain. And if the husband in 
 any manner connived at the seduction of his wife he can 
 not recover damages therefor. 
 
 Where a wife receives personal injuries which incapac- 
 itate her for her duties, there are two kinds of damage, (ly 
 that suffered directly by the wife, (2) that conse- 
 quentially suffered by the husband. At common law, for 
 the former, being her pain and suffering, humiliation and 
 the like, the suit was in the name of both; and for the 
 latter, being the loss of society and services, the husband 
 sued alone. In either case the amount recovered belonged 
 to the husband. Now, however, it is generally the law 
 that the damages in the former case inure to the wife, 
 and only in the latter case to the husband.
 
 CHAPTER XLIII 
 
 PARENT AND CHILD 
 
 Sec. 
 
 565. Legitimacy. 
 
 566. Rights and duties of 
 
 parent and child. 
 
 567. Wrongs as between par- 
 
 ent and child. 
 568- Fraud between parent and 
 
 child. 
 569. Wrongs by third persons. 
 
 Sec. 
 
 570. Child's ir.rerest in the par- 
 ent. 
 
 57L Parent's interest in the 
 child. 
 
 572. Physical injuries to the 
 
 child. 
 
 573. Enticing away the child. 
 ^74. Seduction. 
 
 § 565. Legitimacy. — Children may be either legiti- 
 mate or illegitimate, according as their parents are or are 
 not lawful husband and wife ; or they may be adopted. 
 Every child born to a wife during the continuance of the 
 marriage relation is presumed to be the child of her hus- 
 band. The presumption is not conclusive, however, and 
 illegitimacy of the child may be established by proof, but 
 only by clear and convincing proof. Illegitimate children 
 born before marriage become legitimate upon marriage 
 of their parents, but in England and a few states this 
 is not the law. At common law, the children born of a 
 void marriage were illegitimate, but it is generally pro- 
 vided by statute that if the marriage was entered into in 
 good faith, the children shall be deemed legitimate. The 
 common law did not recognize the adoption of children. 
 Statutes in many states now make provision therefor and 
 these must be scrupulously observed. Generally upon 
 the adoption of a child, the adopting parent and the child 
 have all the rights, duties and liabilities that exist between 
 ttalural parent and child. 
 
 351
 
 352 ELEMENTARY LAW [§ 566 
 
 § 566. Rights and duties of parent and child. — The 
 
 mother of a bastard has the right to custody and control, 
 and she is under obligation to support it; its supposed 
 father is not liable for its support, except under special 
 proceedings provided by statute. At common law a 
 bastard could not inherit either from his father or 
 mother, but by statute the bastard now in most states 
 inherits from the mother, and in some inherits from the 
 father in the absence of other heirs. 
 
 As to legitimate children, the duty of the parent, first 
 the father, or if he be dead the mother, is to protect, 
 educate and maintain the child during minority. Just 
 the exact status of this duty is uncertain, but most states 
 hold the parent responsible for necessaries furnished to 
 the child, where the parent has not been illegally deprived 
 of the custody of the child. Direct suits by the child 
 against the parent for support have never been allowed. 
 In some states the duty is made clear by statute. No 
 action is permitted by a child against a parent for any 
 failure in these duties, even though the failure may be 
 criminally punishable. By way of compensation for, and 
 in aid of the parent's duties, the law gives to the parent 
 the custody, control and services of his minor children. 
 He may moderately and reasonably correct or restrain 
 the child. So long as he is a fit person, he is entitled 
 to the custody of the child. All rights and duties as 
 between parent and child end with the majority of the 
 child or emancipation, that is, the agreement, express or 
 implied, of the parent and child that the child may be 
 treated as an adult. 
 
 A parent is not liable for wrongs done by the child 
 to other persons, unless done by the parent's directior., 
 or in his service. Of course, a child can not be held 
 liable for wrongs done by its parent.
 
 § 569J PARENT AND CHILD 353 
 
 § 567. Wrongs as between parent and child. — 
 Whether a parent will be civilly liable for personal 
 wrongs done to a child is not wholly settled. By the 
 weight of authority and the better opinion there is no 
 civil liability, so far as assault and battery or imprison- 
 ment is concerned, it being deemed safer to rely upon 
 the natural affection of a parent. 
 
 For any wrongs done by a parent to the property of 
 his child, he is answerable the same as he would be to 
 any other person. 
 
 For any injury done by a child to its parent the 
 better view is that the child will not be civilly responsible. 
 These rules are based upon the public policy that it is 
 better for family discipline and peace that such con- 
 troversies should not be brought into the court. 
 
 § 568. Fraud between parent and child. — Inasmuch 
 as an infant's dealings with his property are voidable, a 
 parent can not acquire any advantage through his influ- 
 ence over the infant. The transaction would be invalid, 
 simply from want of power in the infant. But after 
 maturity of the child, there may still be an influence by 
 the parent, and if such influence and relation of confidence 
 be used to obtain an undue advantage in any transaction 
 between the parent and child, the child may have redress 
 by appeal to the courts. Such relation of confidence may 
 also exist in favor of the parent in old age, and he will 
 be protected in a similar way against the machinations 
 of his mature offspring. 
 
 § 569. Wrongs by third persons. — Whenever a 
 third person does an injury to a parent or a child, there 
 is a double loss, direct to the one and consequential to 
 the other, and the question is how are such wrongs 
 
 23 — Elem. Law.
 
 354 ELEMENTARY I.AW [§ 570 
 
 done, and for what loss is the wrongdoer held responsible. 
 These will be considered separately. 
 
 § 570. Child's interest in the parent. — In the rela- 
 tion of parent and child, the general rule applies that the 
 inferior has no rights in the superior, hence a child has 
 no such interest in the parent as will support a suit by 
 the child to recover for injuries to the parent. The only 
 exception is in cases of injuries causing death, when the 
 statute gives a right of recovery to the personal repre- 
 sentative for the benefit of wife or child. This has been 
 considered elsewhere. 
 
 § 571. Parent's interest in the child. — The parent 
 is entitled to the services of his child, and all the profits 
 to be derived therefrom until majority. Whoever in- 
 capacitates the child from rendering the service, causes 
 legal damage to the parent, and is subject to an action. 
 The right to recover is based on the right to services and 
 the duty to protect. At common law the parent recovered 
 only to the same extent that a master would recover for 
 loss' of services of his servant. 
 
 Damage to the parent may arise by injuries that 
 diminish the child's ability to serve, or by wholly depriv- 
 ing the parent of its services; and the latter may occur 
 by enticing the child away or by causing its death. The 
 last-named wrong has been treated in a former section. 
 
 § 572. Physical injuries to the child. — Any one who 
 by a wrongful act injures the child so as to deprive the 
 parent of its services, or to cause loss through care and 
 attendance upon it, is liable to the parent therefor. If 
 tjhe injury is of a continuing nature, the parent recovers 
 iiot only the value of the services actually lost, but for 
 the deprivation or impairment of services up to the age
 
 § 574] PARENT AND CHILD 355 
 
 of twenty-one. In estimating the value of services the 
 expense of supporting the child must be considered. It 
 's only for loss of services that the parent recovers; for 
 mere loss of happiness, comfort and society of the child, 
 except so far as they can be viewed as services, there 
 can be no recovery. The parent's anxiety, grief and 
 sympathy for the child's injury are not elements of dam- 
 age in a legal sense. For the child's suffering, mental 
 anxiety and permanent injury or disfigurement, the 
 parent has no right of action for his own benefit, the 
 action for all such damage being in the name of the 
 child itself and the recovery being for its own benefit. 
 
 § 573. Enticing away the child. — The parent is en- 
 titled to the custody as well as the services of the child; 
 and if a wrongdoer get possession of it, the parent may 
 by legal proceedings have it restored to him. 
 
 Whoever by force or artifice takes a child away from 
 its parent is liable to the parent for the loss of its ser- 
 vices. The recovery in such case is based upon the rela- 
 tion of master and servant, rather than upon the parental 
 relation. For if the parent has emancipated the child, 
 that is, given to it the right to enjoy all the profits of 
 its services, so that there is no longer the relation of 
 master and servant, there is no right of recovery in favor 
 of the parent. 
 
 § 574. Seduction. — The wrong by seduction of a 
 female child has some elements that distinguish it from 
 other wrongs. The law has labored under some difficulties 
 from which it has emerged but slowly. Under the com- 
 mon law the right of action was based purely upon the 
 parent's right as a master to the services of his daughter 
 as a servant. It followed from this, that while he could 
 recover against a seducer, if his daughter resided at
 
 356 ELEMENTARY LAW [§ 574 
 
 home, or was not actually in the service of some one else, 
 lie could not recover if another person were lawfully en- 
 titled to her services by contract. The law permitted the 
 father to recover for the shame and humiliation conse- 
 quent upon the seduction, but only in cases where he was 
 entitled to recover on account of loss of services. Conse- 
 quently, when she was in the service of another, the 
 only damages recoverable were the loss of her time and 
 the expenses, and these were recoverable by the person 
 who was entitled to the service or who paid the expenses. 
 The anomaly was that the action was made to depend 
 upon loss of services, which generally were merely 
 nominal, whereas the real injury for which the substantial 
 damages were given was the shame and disgrace. 
 
 To remedy this inconsistency statutes have been 
 passed in most of the states giving the parent a right of 
 action for the seduction of the daughter, whether or not 
 the daughter be living with the parent, or the parent be 
 entitled to her services. A further right of action is 
 given to the woman, seduced to sue for her own seduction.
 
 CHAPTER XLIV 
 
 GUARDIAN AND WARD 
 
 Sec. Sec. 
 
 575. Kinds of guardianship. 581. Next friend. 
 
 576. Natural guardian. 582. Rights of guardian and 
 
 577. Testamentary guardian. ward in each other. 
 
 578. Legal guardian. 583. Wrongs between guardian 
 
 579. Guardian's deeds. and ward. 
 
 580. Guardian ad litem. 584. Guardian of the insane. 
 
 § 575. Kinds of guardianship. — A guardian is one 
 who has the care and management of either the person 
 or property, or both, of a child during minority. At 
 common law there were many kinds of guardianship, 
 which have become obsolete. In the United States at 
 present the law relating to guardianship is much the same 
 for all the states. 
 
 The following are to be considered: (1) Natural 
 guardians. (2) Testamentary guardians. (3) Legal 
 guardians. (4) Guardians ad litem. (5) Prochein ami 
 or next friend. 
 
 § 576. Natural guardian. — By this is meant the 
 father, or, on his death, the mother. None other can be 
 the natural guardian. The natural guardian has control 
 of the person of the child, but not of its property. The 
 title is, in fact, nothing more than another name for the 
 natural right of a parent to the custody and control of 
 the child. It adds nothing to the legal right. There is 
 no action that may be brought for an infant by natural 
 guardian, and whenever a parent sues as such on account 
 of any injury to the child the recovery is for the benefit 
 
 of the parent only. 
 
 • 357
 
 358 ELEMENTARY LAW [§ 577 
 
 § 577. Testamentary guardian. — By this is meant 
 tlie person named in a parent's will to be the guardian 
 of a child. Such person simply has a preference to be 
 appointed the legal guardian, if all other things are equal. 
 He has no powers unless appointed by the court, and 
 when legally appointed his status is that of an ordinary 
 legal guardian. 
 
 § 578. Legal guardian. — By this is meant the per- 
 son appointed to be guardian by the court having jurisdic- 
 tion. Generally the father has the preference, then the 
 mother, then the next of kin in order. The legal 
 guardian always has exclusive control of the ward's 
 property and sometimes of the ward's person. So long 
 as the parent claims the custody of the child's person, the 
 legal guardian has no right to it. But if the parents are 
 dead, or unfit, the legal guardian is entitled to custody. 
 
 The guardian's duty is to see that the ward is cared 
 for and properly educated. As to the ward's estate, the 
 guardian is bound to exercise care and diligence in man- 
 aging it; must account from time to time to the court 
 appointing him, and upon maturity of the ward must 
 pay over and deliver to the ward the entire estate. The 
 guardian is held to strict accountability. Unauthorized 
 acts of the guardian may be adopted if beneficial, or 
 rejected if detrimental to the estate; and a guardian is 
 not permitted to reap any personal benefit whatever out 
 of the management of the estate, except what is allowed 
 by the court as compensation for his services. 
 
 Among the guardian's duties are the collection of 
 debts and the defense of all suits against the ward. What 
 suits must and what may be brought in the name of the 
 guardian for the infant is regulated by statute in the 
 several states. In cases where the law does not permit 
 the guardian to litigate for the infant or where though
 
 § 581] GUARDIAN AND WARD 359 
 
 entitled he refuses to do so, it is generally provided that 
 the action or defense may be made for the infant by 
 guardian ad litem or next friend. 
 
 § 579. Guardian's deeds. — A guardian can only con- 
 vey his infant's land when authorized to do so by a 
 court having jurisdiction. The deed of an infant is void- 
 able, and may be ratified or disaffirmed by the infant, on 
 arriving at full age or before. Lands of idiots and luna- 
 tics can only be conveyed by guardians, under authority 
 of the court. 
 
 § 580. Guardian ad litem. — After a suit is begun 
 against an infant, and the infancy is disclosed to the 
 court, the court will see to it that he is represented by 
 a guardian. Whenever the legal guardian appears for the 
 infant a guardian ad litem is usually not necessary. But 
 in absence of the legal guardian the court appoints a 
 guardian for the purposes of that suit only — a guardian 
 ad litem. He is an officer of the court, may be removed 
 at pleasure, has no power over the infant's person or 
 property, has no power to admit or waive anything; his 
 functions being only to see that the infant's case is fully pre- 
 sented to the court for decision. The guardian ad litem 
 is always for the defense. 
 
 § 581. Next friend. — An infant is not permitted to 
 maintain an action in his own name solely, if his disability 
 is brought to the attention of the court. Wherever the 
 legal guardian can not or will not bring suit for the 
 infant, the infant must be represented by his next friend. 
 The infant may select, if he washes, or, if suit is brought 
 before the infant has selected, the court may appoint the 
 next friend. Any one may act as next friend; it is not 
 confined to kin. The next friend is subject to control of
 
 360 ELEMENTARY LAW [§ 582 
 
 the court, and may at any time be removed by the court 
 and another appointed. One purpose in requiring a next 
 friend for an infant is thai: there may be some one re- 
 sponsible for the costs of the suit. The next friend is 
 hable for costs while the infant is not. It is usually pro- 
 vided that there need be no next friend, where an infant 
 is a joint plaintiff with adults. 
 
 § 582. Rights of guardian and ward in each other. 
 
 — A guardian has no right to the services of a ward, 
 and unless the relation of master and servant exists, can 
 not recover for his own benefit any damages on account 
 of injuries to the ward. 
 
 A ward has no interest in the guardian's services that 
 will sustain an action by the ward against one who in- 
 jures the guardian. 
 
 § 583. Wrongs between guardian and ward. — As 
 between each other, guardian and ward are answerable 
 for injuries done, to the same extent as if the relation 
 did not exist. Except, however, that where the guardian 
 has custody of the ward's person, he stands in loco 
 parentis and has a larger right to restrain and correct 
 the ward. And also, where the influence of the guardian 
 is misused, the relation enters as a factor into the duty 
 owing and the wrong done. This is shown in the chap- 
 ter on frauds. 
 
 § 584. Guardian of the insane. — Analogous to the 
 guardianship of infants is the guardianship of the insane. 
 It is generally provided by statute that upon a judicial 
 determination of the insanity of a person, the court may 
 appoint a guardian to take charge of the person and 
 property of the insane. The duties of such guardians 
 are the same in general as those of guardians of infants.
 
 § 584] GUARDIAN AND WARD 361 
 
 and they are held to like accountability. It is their duty 
 to appear for and defend suits against their insane wards. 
 The guardianship may be terminated upon the restora- 
 tion to sanity of the ward, which fact must be judicially 
 determined in the same way that insanity was determined.
 
 PART IX 
 
 Sec. 
 
 
 Sec. 
 
 585. 
 
 Public law in general. 
 
 588. 
 
 586. 
 
 Constitutional law in gen- 
 eral. 
 
 
 587. 
 
 The American doctrine of 
 constitutional law. 
 
 589. 
 590. 
 
 PUBLIC LAW 
 
 CHAPTER XLV 
 CONSTITUTIONAL LAW IN GENERAL 
 
 Legal importance of the 
 American doctrine of 
 constitutional law. 
 
 Arrangement of the sub- 
 ject. 
 
 The separation of powers. 
 
 § 585. Public law in general. — In a previous chap- 
 ter public law was said to be composed of those 
 rules dealing with the "structure, powers, rights and 
 activities of the state" while private law includes "all the 
 residue of legal principles." Holland makes the distinc- 
 tion rest upon the question of whether the law regulates 
 rights between subject and subject or between state and 
 subject, it being private law in the first case and public 
 law in the second. He then divides public law into con- 
 stitutional law, administrative law and criminal law. To 
 these three divisions may be added international law, 
 which is that body of rules in accordance with which the 
 rights between state and state are regulated. For peda- 
 gogical reasons criminal law was treated in an earlier 
 part of the volume, and the remaining divisions will be 
 treated in the order named. 
 
 § 586. Constitutional law in general. — A constitu- 
 
 362
 
 8 586] CONSTITUTIONAI, LAW IN GENERAI, 363 
 
 tion may be defined as a body of precepts, "written or 
 unwritten, designed to control governmental action until 
 modified in some authorized manner." Constitutional law 
 is the body of rules and principles which the courts adopt 
 in the application and construction of these precepts. 
 One of the chief differences between an unwritten and a 
 written constitution is the difference in the method of 
 amendment or alteration. For instance, in England where 
 the constitution is unwritten, it is changed in the same 
 manner that an ordinary statute is passed, by an act of 
 Parliament. In the United States, however, the method 
 of amending the constitution is much more formal and 
 requires a far more elaborate process than the enactment 
 of a statute, the theory being that only those things are 
 put in the written constitution which are so fundamental 
 as to require their being placed beyond the reach of hasty 
 or ill-considered action. 
 
 Two very important results have followed from this 
 difference, and they are that in America the legislatures 
 are much less free than in England, and the judiciary is 
 made the guardian of the constitution. Since our legis- 
 latures can not change the constitution their acts are sub- 
 ject to its limitations. Since it is the function of the 
 judiciary to interpret and apply the law, the courts have 
 reserved the right to decide when legislation is in con- 
 flict with the fundamental law of the constitution and 
 declare it void. 
 
 In America, where all our constitutions are written, 
 a constitution may be defined as a written instrument, 
 setting forth the fundamental law adopted by the state 
 as the basis of its government, and alterable only by 
 special process. Constitutional law, then, in the sense in 
 which we will use it, is the body of rules and principles 
 followed by the courts in the construction and application 
 of this instrument.
 
 364 ELEMENTARY I,AW [_§ 587 
 
 § 587. The American doctrine of constitutional law. 
 ■ — Professor Maine says the Supreme Court of the United 
 States is the unique and important contribution of Amer- 
 ica to the science of government. He speaks, of course, 
 of its transcendent power to annul an act of the legisla- 
 ture approved by the executive, when, in the opinion of 
 the court, the act in question is contrary to the provisions 
 of the constitution. This power was disputed soon after 
 the adoption of the constitution. It has never been de- 
 nied since Chief Justice Marshah uttered those memorable 
 words in his opinion in the case of Marbury v. Madison, 
 1 Cranch (U. S.) 177. He says: "It is emphatically the 
 province and duty of the judicial department to say what 
 the law is. Those who apply the rule to particular cases 
 must of necessity expound and interpret that rule. If 
 two laws conflict with each other, the court must decide 
 on the operation of each. So if a law be in opposition 
 to the constitution, if both the law and the constitution 
 apply to a particular case, so that the court must either 
 decide that case conformably to the law, disregarding the 
 constitution, or conformably to the constitution, diregard- 
 ing the law, the court must determine which of these con- 
 flicting rules governs the case. This is the very essence 
 of judicial duty. If then the courts are to regard the 
 constitution, and the constitution is superior to any ordi- 
 nary act of the legislature, the constitution, and not such 
 ordinary act, must govern the case to which they both 
 apply. Those, then, who controvert the principle that the 
 constitution is to be considered in court as a paramount 
 law are reduced to the necessity of maintaining that 
 courts must close their eyes on the constitution and see 
 only the law. This doctrine would subvert the very 
 foundation of all written constitutions. It would declare 
 that an act which, according to the principles and theory 
 of our government, is entirely void is yet, in practice,
 
 § 589] CONSTITUTIONAL I.AW IN GENERAL 365 
 
 completely obligatory. It would declare that if the legis- 
 lature shall do what is expressly forbidden, such act, not- 
 withstanding the express prohibition, is in reality effectual. 
 It would be giving to the legislature a practical and real 
 omnipotence with the same breath which professes to 
 restrict their powers within narrow limits. It is pre- 
 scribing limits and declaring that those limits may be 
 passed at pleasure." 
 
 § 588. Legal importance of the American doctrine 
 of constitutional law. — The American doctrine is in di- 
 rect contrast to the European practice, where the main 
 departments of government are left free to determine 
 their own constitutional limitations. The practical result 
 of the above is that European constitutions are in fact 
 only moral or political checks upon governmental action, 
 and their courts can not set aside laws and orders when 
 in conflict with them, but are limited to their construc- 
 tion and application. In England, where Parliament is 
 supreme, the courts have a duty to perform in interpret- 
 ing statutes, but they have no power to disallow laws 
 because in conflict with the constitution. In America, 
 however, the constitution is made a legal restraint upon 
 all governmental action. It thus vitally affects public and 
 private interests, and much of our important litigation 
 turns solely upon questions of constitutional construction. 
 When a law, order or judgment is held to be un- 
 constitutional and void, the general rule is that private 
 rights affected by them enjoy the same status as if the 
 law, order or judgment never had been made. It has 
 been said that when a law is declared void, it is the same 
 in effect as if it never had been passed. The statement, 
 however, is subject to some exceptions. 
 
 § 589. Arrangement of the subject. — The subject
 
 366 ELEMENTARY LAW [§ 590 
 
 of constitutional law is treated in three chapters, this one 
 dealing with the general conceptions of the subject, the 
 second dealing with the fundamental rights guaranteed 
 by the state and federal constitutions, and the third deal- 
 ing with the federal government, its powers and duties 
 and its relations with the state governments. The excel- 
 lent arrangement used by Professor James P. Hall in his 
 text on Constitutional Law is largely followed in these 
 chapters. 
 
 § 590. The separation of powers. — The federal and 
 all of the state constitutions either expressly or impliedly 
 provide for the theory of separation of powers. By this 
 doctrine all the powers of government are divided between 
 the three departments, the executive, the legislative and 
 the judicial. Each of these departments is supreme in 
 its sphere of action. It was thought that by thus dividing 
 the powers that a check could be secured against the 
 executive tyranny, an abuse which the fathers greatly 
 feared. This scheme has resulted in two general princi- 
 ples of constitutional law, as follows : First, each depart- 
 ment is limited to the performance of acts properly per- 
 taining to the functions of that department. Second, 
 each department in the performance of its peculiar func- 
 tions is independent of control or regulation by the other 
 department. Thus it has been held that a legislature can 
 not impose duties nonjudicial in their nature upon the 
 judiciary, and that judicial powers can not be exercised 
 by the legislative or the executive departments. It has 
 also been held that the governor of the state can not 
 be made a defendant to a proceeding before the court, 
 since that would violate the theory of complete separation 
 of powers. There are exceptions to these general rules, a 
 discussion of which is prevented by the limits of space.
 
 CHAPTER XLVI 
 
 FUNDAMENTAL CONSTITUTIONAL RIGHTS 
 
 Sec. 
 
 591. Fundamental constitution- 
 
 al rights. 
 
 592. Citizenship and naturali- 
 
 zation. 
 
 593. Suffrage. 
 
 594. Freedom of speech and of 
 
 the press. 
 
 595. The right to assemble. 
 
 596. The right to bear arms. 
 
 597. Religious liberty. 
 
 598. Protection to persons ac- 
 
 cused of crime. 
 
 599. Due process of the law 
 
 and protection of the 
 law in regard to proced- 
 ure. 
 
 Sec. 
 600. 
 
 601. 
 
 602. 
 
 603. 
 
 Due process and equal 
 protection of the law in 
 regard to the police 
 power. 
 
 Due process of law and 
 equal protection of the 
 law in regard to taxa- 
 tion. 
 
 Due process and equal 
 protection of law in re- 
 gard to eminent do- 
 main. 
 
 Laws impairing the obli- 
 gation of contracts. 
 
 § 591. Fundamental constitutional rights. — Perhaps 
 the most important branch of constitutional law is that 
 dealing with the fundamental rights. The framers of our 
 constitution thought that there were some individual rights, 
 such as those of life, liberty and property, with which the 
 government should not arbitrarily interfere, consequently 
 they wrote them into our constitution, and they can not 
 now be altered or impaired except by constitutional amend- 
 ment. The purpose of this chapter is to briefly review 
 these fundamental rights and to determine their scope 
 and meaning. 
 
 § 592. Citizenship and naturalization. — Citizenship 
 is membership in a political community or group. In this 
 country there are two kinds of citizenship and allegiance 
 
 367
 
 368 ELEMENTARY L,AW [§ 592 
 
 — one national and the other state. It is for congress to 
 determine who shall enjoy the privileges of national 
 citizenship within the limits prescribed by the constitution, 
 and the laws of the several states fix the conditions under 
 which state citizenship is acquired. No state can make 
 or enforce a law which shall abridge the privileges and 
 immunities of citizens of the United States. This is a 
 provision of the Constitution of the United States — and 
 any state law to the contrary is void. It is further pro- 
 vided in the constitution that the citizens of each state 
 shall be entitled to all privileges and immunities of citi- 
 zens in the several states. The right of a citizen to 
 expatriate himself and become a subject of another nation 
 was questioned in this country until congress passed a 
 law recognizing such right. 
 
 Citizenship is acquired by birth or naturalization. The 
 fourteenth amendment provides that "all persons born or 
 naturalized in the United States and subject to the juris- 
 diction thereof, are citizens of the United States and of 
 the state wherein they reside." Congress has also pro- 
 vided by law that all persons born outside of the limits 
 of the United States, whose fathers are at that time 
 citizens thereof, shall be deemed citizens. 
 
 The power over naturalization is vested in congress. 
 It is within the power of the states to adopt citizens on 
 easier terms than the laws of congress may impose, but 
 they have no power to exclude from citizenship those who 
 have been naturalized according to the laws of congress. 
 By these laws the applicant, who must be a white person 
 or a person of African descent, must make their oath 
 before the proper officer, at least two years before his 
 admission, that it is his intention to become a citizen, and 
 renounce his allegiance to his own sovereign. At his final 
 admission to citizenship he shall make oath that he will 
 support the Constitution of the United States and re-
 
 § 593] FUNDAMENTAL CONSTITUTIONAL RIGHTS 369 
 
 ziounce all allegiance to any foreign power, especially his 
 own sovereign. His application must be in his own hand- 
 writing. He must prove by at least two citizens that he 
 has resided in the United States five years ; that he has 
 been a moral person and is attached to and well disposed 
 toward the principles of this government. He must also 
 renounce all titles to nobility, if he have any. Children 
 of naturalized parents, who were under age when the 
 parents were naturalized, shall, if residing in the United 
 States, be considered citizens. 
 
 Congress also has the power to provide for collective 
 naturalization. By fully incorporating newly acquired ter- 
 ritory into the United States it may make all of the 
 inhabitants of the territory citizens of the United States. 
 Collective naturalization may also be accomplished by 
 providing for it in a treaty by which the territory is 
 acquired. 
 
 § 593. Suffrage. — The federal constitution has but 
 few provisions regarding suffrage. It has left to the 
 state the fixing of the suffrage qualifications for congress- 
 men and presidential electors. The constitution provides 
 that "the electors in each state shall have the qualifications 
 requisite for electors of the most numerous branch of 
 the state legislature." The president and vicepresident of 
 the United States are elected by presidential electors 
 whom "each state shall appoint in such manner as the 
 legislature thereof shall direct." The fifteenth amendment 
 provides that the right to vote shall not be denied or 
 abridged "on account of race, color or previous condition 
 of servitude." The result of these constitutional provisions 
 is that the matter of suffrage both for state and federal 
 officers is left to the individual state, subject to the pro- 
 visions of the fifteenth amendment, above quoted, and to 
 the condition set forth in section two of the fourteenth 
 24 — Elem. Law.
 
 370 ELUMEINTARY LAW [§ 594 
 
 amendment, which provides for the reduction of the con- 
 gressional representation of any state who denies the 
 right of suffrage to its male inhabitants who are twenty- 
 one years of age and citizens of the United States. Al- 
 though some of the states have adopted qualifications 
 resulting in such denial, congress has not seen fit to 
 reduce their representation. Most of the states write 
 their suffrage qualifications into their constitutions al- 
 though in a few cases the matter is left in some degree 
 to the discretion of the legislature. 
 
 § 594. Freedom of speech and of the press. — The 
 
 Constitution of the United States and of the several 
 states prohibit the enactment of any laws restricting the 
 right to speak, write or print freely on any subject. The 
 intent of these provisions is to forbid political censorship 
 or control by persons who exercise the power of the 
 state. Freedom of speech or press is not thereby enlarged, 
 but only protected against invasion. There is no unlimited 
 freedom of speech or press. The right must be exercised 
 subject to the bounds fixed by law. Liberty of the press 
 consists in printing without any previous license, but sub- 
 ject to the consequences of law. 
 
 The right of free speech and press does not warrant 
 a man's using blasphemous, obscene or seditious language. 
 Legislation directed against such speaking, writing or 
 printing is uniformly held to be constitutional. 
 
 § 595. The right to assemble. — The right of citi- 
 zens to assemble in a peaceable manner to consult for 
 their common good is a political right that is generally 
 secured by the constitutions of the states. 
 
 The federal constitution also provides that congress 
 shall make no law abridging "the right of the people
 
 § 598] FUNDAMENTAL, CONSTITUTIONAL, RIGHTS 371 
 
 peacefully to assemble, and to petition the government 
 for a redress of grievances." 
 
 These provisions do not prohibit regulations forbid- 
 ding disorderly assemblages or demonstrations or those 
 held at unreasonable times and places. 
 
 § 596. The right to bear arms. — This right is guar- 
 anteed by federal and state constitutions to every citizen. 
 As used in the constitutions the word "arms" has the 
 military sense and refers to such weapons as are suitable 
 for the general defense of the community, and does not 
 include such weapons as are peculiarly adapted to indi- 
 vidual encounters. Therefore it would not be unconstitu- 
 tional to prohibit the carrying of such weapons as the 
 slungshot. The constitution does not forbid the passage 
 of laws against carrying weapons concealed or against 
 carrying weapons openly with intent to use them unlaw- 
 fully. 
 
 §597. Religious liberty. — The federal constitution 
 provides that "congress shall make no law respecting an 
 establishment of religion, or prohibiting the free exercise 
 thereof." A similar provision is found in most of the 
 state constitutions. These provisions do not guarantee 
 freedom of religious practices, but freedom of religious 
 thought or belief. Thus polygamy may be constitutional- 
 ly prohibited though carried on as a religious practice, 
 but a law making legal or political rights dependent upon 
 one's religious beliefs would be a violation of religious 
 liberty. 
 
 § 598. Protection to persons accused of crime. — 
 The federal and state constitutions contain a number of 
 provisions designed to protect persons accused of crime 
 from possible abuses of the criminal administration by
 
 372 ELEMENTARY LAW [§ 598 
 
 the state or Its officers. The federal constitution prohibits 
 both the general government and the state governments 
 from passing any bills of attainder or ex post facto laws. 
 A bill of attainder is "a legislative act which inflicts pun- 
 ishment without a judicial trial." An ex post facto law 
 is a law which changes the legal status of an act after 
 it has been done, to the prejudice of the person accused 
 of the act. Thus a law making an act a crime which was 
 innocent when it was performed is void. The federal 
 constitution and most of the state constitutions contain 
 provisions that no person shall be compelled to testify 
 against himself in a criminal prosecution. Under this 
 provision a person being tried for the commission of a crime 
 can not be compelled to give testimony that is self- 
 incriminating. Of somewhat the same nature is the pro- 
 vision of the fourth amendment of the federal constitu- 
 tion and similar provisions in the state constitution 
 against unwarranted searches and seizures. The pur- 
 pose of these provisions is not only to protect people 
 from unwarranted searches and seizures, but also to 
 prevent the seizure of a man's books and papers and 
 other articles to be used in evidence against him. 
 
 The federal constitution provides that in the federal 
 courts all civil suits at common law involving over twenty 
 dollars shall be tried by jury and all criminal trials shall 
 be by jury. The various states have different provisions 
 regarding jury trial and it has been held that the "due 
 process" provision of the fourteenth amendment does 
 not require state courts to observe jury trials. The fifth 
 amendment of the federal constitution provides that no 
 person shall be held to answer for a capital or otherwise 
 infamous crime except upon presentment or indictment 
 by the grand jury. This provision applies only to the 
 federal government. Many state constitutions have the 
 same provisions, however.
 
 § 599] FUNDAMENTAL CONSTITUTIONAL RIGHTS 373 
 
 Both state and federal constitutions also contain pro- 
 visions against excessive bail, excessive fines, and cruel 
 and unusual punishments. They also contain provisions 
 to the effect that no person's life or limbs shall be placed 
 twice in jeopardy for the same act. 
 
 § 599. Due process of the law and equal protection of 
 the laws in regard to procedure. — The fifth amendment 
 and fourteenth amendment of the federal constitution for- 
 bid the general government and the states respectively 
 from depriving any person of life, liberty or property 
 without due process of law. The fourteenth amendment 
 also prohibits any state from denying "to any person 
 within its jurisdiction the equal protection of the laws." 
 The principle back of these provisions is not that the 
 government shall never in any way interfere with life, 
 liberty or property, w^here such interference is deemed 
 necessary to preserve the public welfare, but its real 
 meaning is that it shall not under the guise of advanc- 
 ing the public welfare, unreasonably and arbitrarily in- 
 terfere with the life, liberty and property of individuals. 
 These guaranties apply to procedure as well as to 
 substantive law. They do not guarantee any particular 
 kind of procedure, but they do protect the citizen against 
 any kind of procedure that is arbitrary or contrary to 
 the established laws of the land. Thus where the law pro- 
 vides that in certain kinds of judicial procedure notice 
 and hearing must be given to the party affected and notice 
 and hearing is not given, the proceedings will be void and 
 any judgment affecting life, liberty or property will be 
 without due process of law and void. So where negroes 
 were prohibited from serving on juries and a negro was 
 being tried it was held that his conviction was void, since 
 his trial under such conditions amounted to a denial of 
 equal protection of the law. Due process of law, however,
 
 274 EI.KMENTARY I^W [§ 600 
 
 does not always guarantee judicial proceedings, but it 
 does secure proceedings in accordance with the law 
 and guarantees against those that are arbitrary and un- 
 just. 
 
 § 600. Due process and equal protection of the laws 
 in regard to the police power. — The police power may 
 be roughly defined as the power of the state to regulate 
 conduct and property in the interest of the public wel- 
 fare. It is under this power that the state regulates hours 
 of labor, public morals, safety and convenience, and makes 
 similar provisions in the interests of the state. In mak- 
 ing these provisions the state is subject to the limitations 
 of the due process and equal protection of the laws pro- 
 visions of the fourteenth amendment. As observed in the 
 foregoing section, these limitations do not protect the 
 state from interfering with life, liberty and property 
 where necessary to preserve the public welfare. They do, 
 however, prohibit arbitrary inference under the guise of 
 reasonable regulation. The difficult question, then, is to 
 determine when a given law is a reasonable regulation 
 and when it is an arbitrary interference. That in turn 
 depends upon the answer to the question as to whether 
 or not the law before the court can conceivably have any 
 reasonable relation or connection with the public welfare. 
 If there is such a conceivable relation, the court will hold 
 it valid even though it thinks the law to be unwise and 
 unjust. Where, however, the court finds, as a matter of 
 fact, that there is no such conceivable relation and that 
 the law does invade the right of life, liberty and prop- 
 erty, then they will hold it void as an unconstitutional 
 interference with private rights. Thus where a state 
 prohibited minors from working more than eight hours 
 a day underground it was contended that that was an 
 unconstitutional interference with the liberty of the
 
 § 601] FUNDAMENTAI, CONSTITUTIONAL RIGHTS 375 
 
 miner to work under such conditions as he pleased. The 
 court held, however, that since the statute had a rela- 
 tion to the health and welfare of the citizens of the 
 state, it was not an arbitrary interference with liberty, 
 but a reasonable regulation and therefore, not prohib- 
 ited by the provisions of the fourteenth amendment. 
 Where a tenement-house owner was compelled to make 
 expensive -improvements in order to put the tenements 
 in sanitary condition, he objected to the validity of the 
 law as an interference with his rights of property, but 
 the court held that it was a reasonable regulation cal- 
 culated to preserve the public health and not an unwar- 
 ranted invasion of private property. 
 
 § 601. Due process of law and equal protection of 
 the law in regard to taxation. — The constitution of 
 the states and the federal government all make more or 
 less extensive provisions limiting and regulating the 
 state's power to tax. These regulations must be observed 
 if the tax is to be valid. The most important limitations 
 upon the taxing power, however, are found in the due 
 process and equal protection of the laws which the con- 
 stitution guarantees. To bring taxation within these pro- 
 visions three things are necessary : first, that the state 
 must have jurisdiction of the thing taxed; second, that 
 the tax must be levied for a public purpose; and thirdly, 
 that the classification of the objects taxed shall not be 
 based upon an arbitrary and accidental basis. To tax 
 property without complying with these qualifications 
 amounts to taking of property without due process of 
 law and, therefore, such taxation is void. Whether the 
 government has jurisdiction of the thing taxed depends 
 upon whether it has a legal situs within the limits of the 
 state. Real estate and tangible chattels may be taxed in 
 a state where they are actually situated. Debts have a
 
 376 ElvEMENTARY I,AW [§ 602 
 
 taxable situs at the domicile of the creditor. Thus, if a 
 state levies a tax upon real property situated in another 
 state, such a tax is void, since jurisdiction is lacking. 
 Just what is a taxable situs for some kinds of property- 
 presents many difficult and technical questions which can 
 not be treated here. 
 
 Where a state attempted to authorize a municipality 
 to tax for the benefit of certain private individuals, the 
 tax was held to be void, since it was not for a public pur- 
 pose. To allow the state to take money out of the hands 
 of A, through its power of taxation, and pay it into 
 the hands of B, amounts to taking of property with- 
 out due process. 
 
 If a state should tax men who had red hair and not 
 other men, the tax would be void, as the taking of prop- 
 erty without due process and as a denial of equal protec- 
 tion of the law. Such classification has nothing but an 
 arbitrary and accidental basis. However, the state may 
 tax houses and not barns, and may tax cattle and not tax 
 horses. Such classifications are not based upon arbitrary 
 and accidental considerations, but upon considerations that 
 may conceivably be pertinent to the question of taxation. 
 
 § 602. Due process and equal protection of law in 
 regard to eminent domain. — The federal and state con- 
 stitutions provide that where private property is taken 
 for a public use just compensation must be made. What 
 constitutes a public purpose is a very difficult question 
 to determine, but the courts generally agree that where 
 the purpose is a broad one, involving the health, welfare, 
 safety and convenience of the community, that it is a 
 public purpose. There is some conflict of authority as to 
 whether aesthetic consideration amounts to a public pur- 
 pose the weight of authority holding that it is not. To 
 take property under eminent domain, but not for public
 
 § 603] FUNDAMBNTAi, CONSTITUTIONAL, RIGHTS 377 
 
 purpose, would not only violate the constitutional pro- 
 visions regarding eminent domain, but would also be 
 the taking of property without due process. 
 
 The question frequently arises as to what constitutes 
 a taking and it is generally held that any physical occupa- 
 tion or substantial intrusion of tangible material upon 
 the property amounts to a taking. Thus it has been held 
 that a substantial flooding of land by water amounted to 
 a taking, but that a ringing of a bell which was a nuisance 
 or the pollution of the atmosphere by certain gas was not 
 a taking within the meaning of the constitution. 
 
 § 603. Laws impairing the obligation of contracts. 
 
 — The federal constitution provides that "no state shall 
 pass any law impairing the obligation of contracts." 
 There is no such expressed provision applying to the 
 federal government, but it has been held that contracts 
 are property and, therefore, the federal government is 
 prevented from interfering with them by the fifth amend- 
 ment which forbids the taking of property without due 
 process. Grants, corporation charters, and ordinary agree- 
 ments have been held to be contracts within the meaning 
 of this provision. An impairment of the obligation of a 
 contract is anything which prevents one of the parties 
 from performing or which materially impairs the remedies 
 for the breach of the contract. . Thus, it has been held 
 that a state law postponing or impeding a collection of 
 debts by creditors is unconstitutional and void. A statute 
 of frauds embracing a pre-existing contract not before 
 required to be in writing is void as in conflict with this 
 provision. A state law repudiating its bond issue or re- 
 fusing to accept bonds in payment for taxes as was 
 previously provided is unconstitutional on the same 
 grounds. In the historic Dartmouth College case it was 
 held that a statute changing the terms of the charter was
 
 378 ELEMENTARY LAW [§ 603 
 
 an impairment of contract obligations and void. It is 
 held, however, that all contracts are made subject to the 
 state's power of regulation in the interest of the public 
 welfare. Thus, it has been held that a charter issued to 
 a corporation to carry on the lottery business may be re- 
 pealed by a subsequent statute forbidding the lottery busi- 
 ness altogether. Where two private parties contract to 
 go into the liquor business, a subsequent law prohibiting 
 the liquor business is valid, although it makes impossible 
 the performance of the contract.
 
 CHAPTER XLVII 
 
 FEDERAL GOVERNMENT 
 
 Sec. 
 604. 
 
 605. 
 
 606. 
 607. 
 
 Federal powers and their 
 exercise. 
 
 Territories, dependencies 
 and new states. 
 
 Interstate commerce. 
 
 State regulation and taxa- 
 tion affecting interstate 
 commerce. 
 
 Sec. 
 608. 
 
 609. 
 610. 
 
 Federal treaty-making 
 power. 
 
 Interstate privileges and 
 immunities and other in- 
 terstate relations. 
 
 Relations between state 
 and federal government. 
 
 § 604. Federal powers and their exercise. — The 
 
 federal government is a government of delegated powers- 
 In this it differs from the state governments which are 
 governments of residuary powers. The federal govern- 
 ment has only those powers which are especially granted 
 in the constitution or those reasonably implied. The state 
 government has all the powers that belong to government 
 except those exclusively granted to the federal government, 
 those denied to it by the federal constitution, or those 
 denied to it by its own fundamental laws. A state law 
 is valid unless it can be shown that it is in conflict with 
 some provision of the state or federal constitution; on 
 the other hand, a federal statute is void unless it can be 
 shown that there is some expressed or implied authority 
 in the federal constitution authorizing the passage of such 
 an act. Where congress is given power over a subject its 
 power is complete and it is subject to no limitations 
 except such as may be found in the federal constitution 
 itself. Thus, it has been held that since congress has the 
 power to regulate commerce, its power >3ver commerce 
 
 379
 
 380 i:IvE;mentary law [§ 605 
 
 is complete and, therefore, it can prohibit the sending of 
 lottery tickets from one state to another. Over some 
 subjects, such as bankruptcy, congress and the states have 
 concurrent power. In case of a conflict, the federal 
 powers are always supreme. 
 
 § 605. Territories, dependencies and new states. — 
 
 The federal constitution does not expressly give to the 
 federal government the right to acquire new territory. 
 But this right has been held to exist and is implied from 
 those groups of powers delegated to the federal govern- 
 ment which give it complete control over the external 
 relations of the government. The constitution does pro- 
 vide, however, that "the congress shall have power to 
 dispose of, and make all needful rules and regulations 
 respecting the territory or other property belonging to 
 the United States." It has been held from this grant, 
 and from the implied powers to acquire territory, that 
 the United States has full governmental power over all 
 the territories of the United States not incorporated into 
 states. In such territory, the power of the federal gov- 
 ernment is supreme and plenary, subject only to such of 
 the fundamental, constitutional limitations as are ap- 
 plicable thereto. Thus congress can prescribe the form 
 of government, make the laws, and govern in the mi- 
 nutest detail the territory of Alaska or any other terri- 
 tory of the United States, subject only to the limitations 
 noted above. 
 
 The constitution provides that "new states may be 
 admitted by the congress into this union." Under this 
 authority the federal government may incorporate new 
 territory into states whenever it sees fit. Tluis is given 
 to congress the control of the question of admission of 
 new states into the union.
 
 § 607 j FEDERAI, GOVKRNMKNT 381 
 
 § 606. Interstate commerce. — The federal constitu- 
 tion gives to congress the power "to regulate commerce 
 with foreign nations, and among the several states, and 
 with the Indian tribes." Commerce comprehends any kind 
 of commercial or business intercourse. Commerce car- 
 ried on solely within the state is not subject to the con- 
 trol of the federal government, but when that com- 
 merce is among the states or with foreign nations 
 it is subject to federal control. Commerce is said to 
 be foreign or interstate when it involves intercourse 
 across state boundaries, or with foreign countries. 
 The question frequently arises as to when interstate com- 
 merce begins and ends as such. The rule is that com- 
 merce begins from the time a continuous journey is begun 
 whose ultimate destination takes it across the boundary 
 of the state; it is said to end only when the object of the 
 journey has reached its destination and has been sold or 
 the original package in which it was shipped has been 
 broken or its contents used. During the period that the 
 object is engaged in interstate commerce it is subject to 
 the control of the federal government, and is not subject 
 to regulation or control by the state. 
 
 The power to regulate commerce includes the right to 
 regulate methods of transportation, to fix rates, to make 
 regulations for the safety and convenience of the public, 
 and to prevent commerce being used for purposes or by 
 businesses which derogate from the public welfare. In 
 all these regulations, however, the federal government is 
 subject to the special limitations of the federal constitu- 
 tion. 
 
 § 607. State regulation and taxation affecting inter- 
 state commerce. — Any legislation by the state dis- 
 criminating against interstate commerce, as such, is void. 
 Thus a law taxing articles from other states more than
 
 382 EI<EMENTARY LAW [§ 608 
 
 domestic articles is void. A state law providing oppressive 
 regulations on the sale of beef when shipped in from 
 other states, while not applying to beef slaughtered within 
 the state, is void, as interfering with interstate commerce. 
 A state tax upon interstate commerce, as a tax upon the 
 gross receipts of a railroad, part of which was received 
 from interstate commerce, is void. But a state may tax 
 such property as has a taxable ^itus within the state, even 
 though the property is engaged in the business of inter- 
 state commerce. A state can not make any regulations 
 materially interfering with interstate commerce or the 
 right of persons to engage in such. 
 
 § 608. Federal treaty-making power. — The federal 
 constitution provides that the president "shall have power, 
 by and with the advice and consent of the senate, to 
 make treaties, provided two-thirds of the senators present 
 concur." Just what the limits of the treaty-making power 
 are have never been definitely determined. The general 
 theory seems to be that the federal government can do 
 anything through its treaty-making power that is cus- 
 tomarily done through treaties, subject only to the express 
 limitations in the federal constitution. Thus, it is pos- 
 sible for the federal government to do by treaty what it 
 can not do by legislation. For instance, it can make a 
 treaty with another country, providing that the citizens 
 of that country shall under certain conditions inherit land 
 in this country, even though the constitutional provisions 
 of the state involved prohibit such inheritance. In sup- 
 porting this position in the case of Geofroy v. Riggs, the 
 Supreme Court said: 'The treaty power as expressed in 
 the constitution is in terms unlimited, except by those 
 restraints which are found in the instrument against the 
 government itself and that of the states. It would not 
 be contended that it extends so far as to authorize what
 
 § 610] FEDERAI, GOVERNMENT 383 
 
 the constitution forbids or a change in the character of 
 the government or in that of one of the states, or a ses- 
 sion of any portion of the territory of the latter, without 
 its consent. But v^ith these exceptions it is not perceived 
 that there is any limit to the questions which can be 
 adjusted touching any matter that is properly the subject 
 of negotiation with a foreign country." 
 
 § 609. Interstate privileges and immunities and 
 other interstate relations. — The federal constitution 
 declares that "the citizens of each state shall be entitled 
 to all privileges and immunities of citizens in the several 
 states." This provision means nothing more nor less than 
 that one state shall not pass laws discriminating against 
 persons because they are citizens of other states. Thus 
 a state law prohibiting the right of inheritance to persons 
 who are citizens of another state would be void as con- 
 trary to this provision. A state law taxing the property 
 of the citizens of other states at a higher rate than it 
 taxes like property of its own citizens is also void. 
 
 The federal constitution also provides that "full faith 
 and credit shall be given in each state to the public acts, 
 records and judicial proceedings of every other state; 
 and the congress may, by general laws, prescribe the 
 manner in which such acts, records and proceedings, 
 shall be proved, and the effect thereof." This provision 
 enables a person to enforce the judgment of a state 
 court in any state in which the other party may be 
 found. 
 
 The constitution also provides for the extradition of 
 a person charged with treason, felony or any other crime 
 who has fled to another state, upon the demand of the 
 executive authority of the state from which he fled. 
 
 § 610. Relations between state and federal govern-
 
 384 ELEMEINTARY LAW [§ 610 
 
 ment. — The federal constitution provides that "this 
 constitution, and the laws of the United States which shall 
 be made in pursuance thereof, and all treaties made, or 
 which shall be made, under the authority of the United 
 States, shall be the supreme law of the land; and the 
 judges in every state shall be bound thereby, anything in 
 the constitution or laws of any state to the contrary not- 
 withstanding." Under this provision any conflicts between 
 the laws of the federal and state governments are resolved 
 in favor of the former. This also impliedly prohibits the 
 state from interfering with the operation of any agency 
 created by the federal government in the exercise of its 
 powers. Thus a state may not tax the bank-notes of the 
 national bank nor United States bonds, nor the salary 
 of federal officers. The state may, however, tax the 
 property owned by private individuals although such prop- 
 erty is employed in the federal service. 
 
 On the other hand, it is held that the federal govern- 
 ment can not tax the property of the state government, 
 the salary of state employes, or bonds issued by the state.
 
 CHAPTER XLVIII 
 
 ADMINISTRATIVE LAW 
 
 Sec. 
 
 
 Sec. 
 
 611. 
 
 Administrative law in gen- 
 
 617. 
 
 
 eral. 
 
 618. 
 
 612. 
 
 Liability of officers to 
 
 619. 
 
 
 suits for damages. 
 
 620. 
 
 613. 
 
 Liability of legislative 
 
 621. 
 
 
 officers. 
 
 622. 
 
 614. 
 
 Liability of executive and 
 
 
 
 administrative officers. 
 
 623. 
 
 615. 
 
 Liability of judicial 
 
 
 
 officers. 
 
 624. 
 
 616. 
 
 Mandamus. 
 
 
 Nature of the action. 
 
 Quo vi^arranto. 
 
 How obtained. 
 
 Prohibition. 
 
 Habeas corpus. 
 
 What application must 
 
 show — Return. 
 When legality of restraint 
 
 will not be inquired into. 
 Certiorari. 
 
 §611. Administrative law in general. — Administra- 
 tive law is frequently spoken of as dealing with all the 
 provisions of the law regulating the various matters of 
 public administration, such as the public schools, elections, 
 local government or taxation. In this country, however, 
 there is a tendency to restrict this term to the rules of 
 law governing administrative action affecting private 
 rights. Its subject-rQ.atter then becomes in the words of 
 Professor Freund "the nature and the mode of exercise 
 of administrative power and the system of relief against 
 ^administrative action." The limitations of space restrict 
 us to but one phase of the subject, namely, relief against 
 administrative action. The relief is generallT- secured 
 through a suit for damages against the officers or govern- 
 ment, or through the extraordinary legal remedies, or 
 through appeals to the judiciary. This chapter is confined 
 to the first two methods of relief, which are based upon 
 general principles of the common law. The remedy 
 through appeal is open only when provided for by statute. 
 25— Elem. Law. 385
 
 386 ElvEMENTARY LAW [§ 612 
 
 § 612. Liability of officers to suits for damages. — 
 
 Wherever the law clothes one or more persons with power 
 and imposes the duty to do certain acts, the corresponding 
 right exists in tlie pubHc or in individuals to have that 
 duty correctly and honestly performed. The duty may 
 be violated either through mere honest error, or through 
 malicious and corrupt motives. But it is not for every 
 such violation that the law gives a remedy, and for some 
 violations the only rem.edy is in an action by the state, 
 by mandamus or prohibition, by indictment or by im- 
 peachment. 
 
 In order to determine what, if any, remedy exists,, 
 the act in question must be submitted to several tests. 
 
 One test is whether the act was within or in excess 
 of the authority conferred. If within authority the officer 
 is generally protected, if in excess he may not be. 
 
 Another test is whether the act in question be one that 
 involves the exercise of judgment or discretion as to the 
 manner and propriety of doing it, or whether it is merely 
 ministerial, that is, the manner and propriety of its per- 
 formance is precisely fixed by law. For acts of the dis- 
 cretionary kind the officer generally enjoys immunity from 
 suit; for acts that are merely ministerial, he may be held 
 responsible in legal proceedings. 
 
 Still another test lies in the effect of the act in ques- 
 tion. Every violation of official duty is in some sense 
 an injury to both the public, as a whole, and to every 
 individual of the community. There are, however, some 
 official duties that are imposed primarily for the public 
 benefit, and that affect individuals only incidentally; and 
 again there are duties that are imposed primarily for indi- 
 vidual benefit, though they may also have an incidental 
 public effect. For example, on the one hand there is 
 embezzlement of public funds by an officer; on the other 
 hand, refusal by a sheriff to execute a lawful civil writ.
 
 § 614] ADMINISTRATIVE LAW 387 
 
 In the former case there is no private right of action, 
 but the remedy is confined to the state; in the latter case, 
 the one specially injured may generally have redress. 
 
 It will be of advantage to consider more in detail the 
 acts of various official bodies and persons, in order to 
 ascertain the quality of the acts, and the remedies, if any, 
 that are given. 
 
 § 613. Liability of legislative officers. — It is obvi- 
 ous that all of the legislature's acts are governmental and 
 discretionary. In their nature, its powers are exercised 
 primarily for the public benefit and only secondarily for 
 private benefit. The legislature as a body can have no 
 ministerial duties to perform. Hence, even though the 
 majority or all of the legislators may, in a special in- 
 stance, have acted from malicious and corrupt motives, 
 whereby injury has been caused to an individual, there 
 can be no remedy by private suit. 
 
 Subordinate legislative bodies, however, such as munic- 
 ipal councils, may have duties to perform that are merely 
 ministerial; for example, keeping streets in repair. For 
 the wrongful performance or nonperformance of such 
 duties, if primarily for individual benefit, they may be 
 held liable at the suit of one specially injured. 
 
 Acts of the legislature in excess of its authority are 
 void, and will be so declared by the courts. 
 
 § 514. Liability of executive and administrative of- 
 ficers. — The executive power of the United States is 
 vested in the president, and of the several states in the 
 governors. In the exercise of their respective executive 
 functions, they are not subject to the processes of 
 courts, upon the fundamental principle that the three co- 
 ordinate branches of the government must be independent 
 of each other's control. So long as an act is within the
 
 388 ELEMENTARY LAW [§615 
 
 executive power, it can not be reviewed by the courts, 
 no matter whether the motive be mahcious and corrupt, 
 and whether it causes special injury to an individual. 
 The only remedy, if any there be, would be by way of 
 impeachment. 
 
 Inferior officers charged with duties to carry into 
 effect the laws are usually called administrative officers. 
 The protection to such officers acting within their powers 
 extends only to their errors. If such an officer acts cor- 
 ruptly or maliciously, he may be held liable to civil suit 
 by an individual injured. 
 
 Any executive or administrative officer may be 
 charged with the performance of duties that are merely 
 ministerial. As to such duties, the afficer is subject to 
 the control of the courts by the writ of mandamus, or 
 may be held liable for damages to an individual speciall}' 
 injured through his improper conduct. 
 
 Whenever an officer acts outside of his official author- 
 ity, he to that extent incurs all the responsibility of an 
 individual. 
 
 § 615. Liability of judicial officers. — Judicial acts 
 necessarily involve the exercise of judgment or discretion. 
 For such acts there is complete and absolute immunity 
 from civil suits. So long as they act within their juris- 
 diction, judges can not be held liable civilly, however gross 
 the error may be, or however corrupt and malicious the 
 motive that inspires the act. This is now the well-settled 
 law, older cases affirming a contrary doctrine having been 
 overruled. The rule is not everywhere applied with 
 equal force to courts of special and limited jurisdictions, 
 as to those of superior and general jurisdiction. 
 
 The strong reason upon which the rule rests is in pub- 
 lic policy. It is deemed more advantageous to the public 
 that judges shall be wholly free from fear of private
 
 8 615] administrative: i,aw 389 
 
 suit. The frailty of human nature is such that an honest 
 litigant, firmly convinced of the justice of his cause, is 
 prone upon an adverse decision to believe that the judge 
 can not have acted with pure motives. The decision must 
 alv^ays be against one party or the other, and if it were 
 permitted to sue a judge for a corrupt decision, 
 every honest judge might be hampered by the fear 
 of suits brought by those who feel aggrieved at his 
 decisions. Such a fear would to a greater or less extent 
 necessarily impair the ejflficiency of the judges. It is there- 
 fore deemed best to clothe the judge while acting within 
 his jurisdiction with complete immunity from private suits, 
 and to leave the remedy in the hands of the state only. 
 
 By the phrase, "having jurisdiction," is not meant 
 merely the having jurisdiction of the special case before 
 the court, but the having jurisdiction of that class of 
 cases. From this results a distinction between courts of 
 general jurisdiction and those of limited jurisdiction, such 
 as justices of the peace. The former have as a part of 
 their jurisdiction the right to determine whether the 
 special case before them comes within their general juris- 
 diction, the latter have the Hmits of their jurisdiction fixed 
 with precision, and are bound to confine themselves within 
 such limits. In the former case the judge can not be 
 held liable for mere error, but may be liable if he acted 
 maliciously and corruptly and without there being a 
 fair judicial question that he had not jurisdiction; in the 
 latter case the judge may be held liable for his error, 
 as well as for malice and corruption. 
 
 Judicial officers often have imposed upon them duties 
 which are merely ministerial. As to such they do not 
 act judicially. For example, after a bill of exceptions 
 has been settled, the signing of it by the judge is a min- 
 isterial act and may be enforced by mandamus. It is
 
 390 ELEMENTARY LAW [§ 616 
 
 a general rule that for failure to perform ministerial acts, 
 judges are liable the same as other ministerial officers. 
 
 § 616. Mandamus. — Apart from the ordinary forms 
 of action there is a class of remedies which are properly 
 designated as extraordinary remedies, such as mandamus, 
 quo warranto, prohibition, habeas corpus and certiorari. 
 The writ of mandamus is a command issuing from a 
 court of competent jurisdiction in the name of the state 
 directed to some corporation or officer, or inferior court, 
 requiring the performance of a particular duty therein 
 specified, which duty results from the official station of 
 the party to whom the writ is directed, or from operation 
 of law. The writ is either alternative or peremptory. In 
 the first instance it is usual to issue it in the alternative 
 form, which requires the person to whom it is directed 
 to appear and show cause why the peremptory writ should 
 not issue. If he shows good cause, the proceedings are 
 at an end. If he fails to show good cause, the court 
 awards the peremptory writ which is its final judgment 
 in the case, and obedience to it can be enforced by attach- 
 ment. From judgments awarding the peremptory writ 
 there is usually an appeal allowed except in some special 
 cases, as where it issues from the courts of last resort. 
 
 § 617. Nature of the action. — The proceeding is 
 instituted in the name of the state on the relation of 
 some individual who has an interest in the matter, and 
 who is known as the relator. The writ is issued only 
 in cases where there is a clear legal right and the party 
 has no other adequate remedy. Its office is to compel the 
 performance of a ministerial act, but not to control the 
 exercise of a discretion. It will issue to compel a judge 
 to decide a case, but it will not direct him how to decide 
 it. Though generally used to enforce the performance
 
 § 619] ADMINISTRATIVE I.AW 391 
 
 of public duties, it may be resorted to to enforce private 
 rights when v^ithheld by officers. The following are 
 some of the cases in which this writ may be invoked: 
 (1) To compel the board of commissioners to build or 
 repair bridges; (2) to compel a judge to sign a bill of 
 exceptions or to make a record; (3) to compel a justice 
 of the peace to render judgment or send papers to a 
 higher court; (4) to compel the mayor and city council 
 to levy a tax, or make estimates for public improve- 
 ments in favor of contractors. 
 
 § 618. Quo warranto. — Quo warranto is the name 
 of a writ which at common law might be issued against 
 persons or corporations claiming to exercise any office or 
 franchise, for the purpose of inquiring into their 
 authority, and ousting them from such office or franchise 
 in case no authority should be shown. By the common 
 practice in many, if not all, the states, the redress is 
 .sought by means of an information in the nature of a 
 quo warranto. Some of the cases in which the remedy 
 is applied are (1) where any person shall usurp any pub- 
 h'c office, or any office in a private corporation; (2) 
 where any officer has done or suffered an act which 
 works a forfeiture of the office; (3) where an associa- 
 tion of persons shall assume to act as a corporation 
 contrary to law; (4) where for nonuser or misuser a 
 corporation has forfeited its corporate rights. 
 
 § 619. How obtained. — The information is based 
 upon the affidavit of some person, who states specifically 
 the acts or omissions which show a case of justifying 
 the proceedings. When the information is filed and the 
 proper notice is served, the defendant appears and the 
 case is conducted, as to pleading and trial, as ordinary
 
 392 ELEMENTARY I^AW [§ 620 
 
 civil cases, except where the statute makes provision for 
 a different method of proceeding. 
 
 § 620. Prohibition. — Prohibition is an extraordi- 
 nary writ issuing out of a court of superior jurisdiction 
 directed to an inferior court commanding it to cease 
 entertaining jurisdiction in a cause or proceeding over 
 which it has no control, or where such inferior tribunal 
 assumes to entertain a cause over which it has jurisdic- 
 tion, but goes beyond its legitimate powers and trans- 
 gresses the bounds prescribed to it by law. It is a writ 
 which should only be issued in cases of extreme neces- 
 sity and not for a grievance which may be redressed by 
 means of the ordinary forms of law or in equity. The 
 application for the writ is addressed to the sound dis- 
 cretion of the court and will be issued only where the 
 wrong is imminent and the right to the remedy is clear. 
 Ordinarily, no appeal lies from the judgment of the 
 court refusing to grant the writ. 
 
 § 621. Habeas corpus. — The writ of habeas corpus 
 is issued by any court of competent jurisdiction or judge 
 thereof, in behalf of any person who is restrained of 
 his liberty under any pretext whatever, and it is directed 
 to the officer or person who has custody of the petitioner, 
 commanding him to produce the body of the person so 
 restrained forthwith before the judge or court by whose 
 order the writ was issued, with the day and cause of his 
 caption and detention. It is a writ of right, and the 
 Constitution of the United States provides that the priv- 
 ilege of the writ shall not be suspended, unless when in 
 cases of rebellion or invasion the public safety requires it. 
 
 § 622. What application must show — Return. — One 
 
 who applies for the writ must show in his application by
 
 § 624] ADMINISTRATIVE LAW 393 
 
 whom the person is restrained, the cause or pretense of 
 the restraint, and in what the illegahty of the restraint 
 consists. Where the writ is served upon the person to 
 whom it is directed, he must make an immediate return, 
 and if he delays or refuses he may be attached for con- 
 tempt. Where he produces the person held in custody, 
 he must make and file a return, making a full statement 
 of the authority for the detention and exhibit a copy of 
 the warrant under which he restrains the person in his 
 custody. If the applicant deems the return insufficient, 
 he files exceptions thereto and the judge proceeds to 
 dispose of the application in a summary manner. After 
 hearing the case the judge remands the applicant to the 
 officer or person having him in custody, if the restraint 
 is lawful; if it is unlawful he discharges the applicant 
 from custody. 
 
 § 623. When legality of restraint will not be in- 
 quired into. — The court or judge will never inquire 
 into the legality of the restraint where it is in pursuance 
 of the process of a United States court having jurisdic- 
 tion, or of a judgment of a court of competent jurisdic- 
 tion, or when it is for a judgment in contempt proceed- 
 ings by a court of competent jurisdiction, or when it is 
 upon a warrant of arrest of a court of superior jurisdic- 
 tion having cognizance of the crime or offense charged 
 against the person restrained. 
 
 § 624. Certiorari. — The writ of certiorari is a writ 
 which issues from a superior or appellate court to an 
 inferior court or officer exercising judicial functions, or 
 other person, requiring such court or officer to certify 
 to such superior court a full and complete transcript of 
 the records and proceedings of any such inferior tribunal 
 or officer, or to produce any paper whenever it shall be
 
 394 ' ELEMENTARY LAW [§ 624 
 
 necessary for the proper determination of any cause or 
 proceedings before such superior or appellate court. The 
 purpose of the writ is to enable the superior or appellate 
 court to inquire into the jurisdiction and regularity of 
 the proceedings. It differs from a writ of error in the 
 fact that it issues from the higher court to the lower 
 , court, whether of record or not, and at any stage of 
 the proceedings, as well before as after judgment. It 
 also issues from an appellate court to an inferior court, 
 requiring it to correct or amend the transcript of its 
 proceedings, whenever it is made to appear to the 
 appellate court that there has been a mistake or omission 
 as to any material particular in the transcript as first 
 certified.
 
 CHAPTER XLIX 
 
 INTERNATIONAL LAW 
 
 Sec. Sec. 
 
 625. Definition. 627. Neutrality. 
 
 626. Jurisdiction over foreign 628. When war exists. 
 
 ambassadors. 
 
 § 625. Definition. — International law is that body 
 of rules accepted by the nations as binding upon them in 
 their relations with each other. This is not law in the 
 narrow sense in which we have defined it in the opening 
 chapter since there is no established judicial body to 
 enforce its rules among the nations. Frequently, how- 
 ever, matters of private right are dependent upon the 
 rules of international law, and then the courts apply 
 these rules in determining the rights involved. The 
 horrors of war on land and sea and the increasing bulk 
 and complexity of international relationship resulting 
 from the world-wide growth of commerce and trade 
 have made international law a necessity. There are, 
 however, no fixed sanctions or penalties to punish viola- 
 tions or to enforce obedience to this law; there is no 
 tribunal to hear and determine questions touching breaches 
 of the law. If two nations have a controversy, it can be 
 settled in one of three ways: First, by negotiation be- 
 tween the parties concerned. Second, by arbitration 
 agreed upon by the parties. Third, by war. The 
 Amphyctionic Council was established for a law of 
 nations for the Greek states, but it failed. Aristotle 
 pleaded for the humane treatment of prisoners of war. 
 As late as the Middle Ages the usages of war were bar- 
 barous. The church exercised her influence to soften its 
 
 395
 
 396 ELEMENTARY LAW [§ 626 
 
 rigors. Her efforts were supplemented by the laws of 
 chivalry, and later, nations by treaties bound themselves 
 to certain rules for the conduct of war, and these rules 
 by constant usage have come to be settled law among all 
 civilized peoples. The scope of international law includes 
 also the customs and usages which fix the rights of 
 neutrals, the navigation of the high seas, the extent of 
 the jurisdiction of nations over the seas at their coast 
 lines, the punishment of piracy, treatment of ambassadors 
 and consuls, passports, in fact of all matters growing 
 out of and related to the intercourse of the subjects of 
 nations with each other. 
 
 International law is generally divided into three divi- 
 sions dealing with peace, neutrality and war respectively. 
 
 § 626. Jurisdiction over foreign ambassadors, etc. — 
 
 What is called the conventional law of nations is com- 
 posed of those stipulations and rules which have been 
 incorporated in treaties, a law which is only binding upon 
 the parties to the treaty. To promote harmony and to 
 facilitate the settlement of controversies between nations, 
 and the subjects of different nations, it is customary for 
 nations to have accredited representatives at the seat of 
 government of other nations. These representatives, 
 whether called ministers or ambas'sadors, are not subject 
 to the jurisdiction of the courts of the country to which 
 they are sent, and the same rule extends to the members 
 of their families and households. Likewise a sovereign 
 traveling in a foreign country is not subject to its laws. 
 If any of these offend against the laws of the country 
 where they may be residing temporarily, the only redress 
 is to send them home and make demand upon the country 
 they represent for reparation. This rule does not apply 
 to consuls who are mere commercial agents. Persons
 
 s 
 
 628] INT^RNATIONAI, LAW 397 
 
 belonging to an army or navy within foreign territory 
 are free from arrest. 
 
 § 627. Neutrality. — When two nations are at war, 
 other nations should observe the duties of neutrality 
 towards the belligerents. To enforce these duties most 
 nations enact neutrality laws for the purpose of punish- 
 ing such of their subjects as violate their duties. A 
 neutral must abstain from giving aid to the belligerents. 
 
 § 628. When war exists. — Each belligerent has the 
 right to seize and possess itself of all property within its 
 borders belonging to the enemy or the enemy's subjects. 
 Exceptions are made in favor of debts owing to foreign 
 creditors and to ships in port which have not had suffici- 
 ent time to leave after hostilities began. Where and to 
 what extent the property of an enemy may be seized and 
 confiscated is in this country a political question which 
 must be determined by congress.
 
 PART X 
 
 COURTS, REMEDIES AND PROCEDURE 
 
 CHAPTER L 
 
 COURTS IN GENERAL 
 
 Sec. 
 
 
 Sec. 
 
 629. 
 
 Courts and their jurisdic- 
 tion. 
 
 638. 
 
 630. 
 
 Jurisdiction defined. 
 
 639. 
 
 631. 
 
 Federal courts. 
 
 
 632. 
 
 The senate as a court. 
 
 640. 
 
 633. 
 
 Judicial circuits and dis- 
 
 
 
 tricts. 
 
 641. 
 
 634. 
 
 Judicial power of the 
 
 
 
 United States. 
 
 642. 
 
 635. 
 
 Exclusive jurisdiction of 
 
 
 
 federal courts. 
 
 643. 
 
 636. 
 
 Concurrent jurisdiction of 
 federal and state courts. 
 
 
 637. 
 
 Jurisdiction of the 
 
 644. 
 
 
 Supreme Court of the 
 
 645. 
 
 
 United States. 
 
 
 Jurisdiction of the circuit 
 courts of appeals. 
 
 Jurisdiction of the district 
 courts. 
 
 The court of customs ap- 
 peals. 
 
 Jurisdiction of the court 
 of claims. 
 
 United States commis- 
 sioners. 
 
 Courts of the territories 
 and of the District of 
 Columbia. 
 
 State courts. 
 
 Jurisdiction of state 
 courts. 
 
 § 629. Courts and their jurisdiction. — A court is 
 a tribunal in which controversies concerning pubhc and 
 private rights and wrongs are adjudicated according to 
 the regular forms of law. Courts are the substitutes 
 which in civilized societies take the place of private war, 
 or the right of each individual to seek the redress of his 
 wrongs in his own way. Courts are the creatures of 
 positive law and their jurisdiction is fixed by the power 
 which creates them. The Constitution of the United 
 States and the laws of congress fix the jurisdiction of the 
 
 398
 
 § 631] COURTS IN GKNERAL 399 
 
 United States courts and the constitutions of the several 
 states and the statutes of their respective legislatures fix 
 the jurisdiction of the state courts. 
 
 § 630. Jurisdiction defined. — Jurisdiction is the 
 right of a court to hear and adjudicate the rights of the 
 parties in a case. It depends on the character of the 
 controversy as to its subject-matter, or on the character 
 of the parties to the controversy, or upon the place where 
 the subject of the controversy arose. Jurisdiction is 
 original or appellate. A court of original jurisdiction is 
 one in which suits are instituted and prosecuted to judg- 
 ment. A court of appellate jurisdiction is one in which 
 a cause once tried in a court of original jurisdiction may 
 be tried again on its merits, or in which the record of 
 the court of original jurisdiction may be examined and 
 reviewed to ascertain if the adjudication of the court 
 below was correct. Again, jurisdiction is exclusive or 
 concurrent. A court is a court of exclusive original juris- 
 diction where the matter in controversy is such that it 
 can not be heard in any other court. Courts are said to 
 be of concurrent jurisdiction where certain actions may 
 be commenced in one or the other, as the parties to the 
 suit may elect. In these cases, however, the court which 
 first obtains jurisdiction generally retains it until the 
 final judgment, to the exclusion of all others. 
 
 § 631. Federal courts. — The federal courts consist 
 of the Supreme Court of the United States, the United 
 States Circuit Court of Appeals, the United States District 
 Courts, the Court of Claims, the Court of Customs 
 Appeals, the Territorial Courts, and the Courts of the 
 District of Columbia. The judges of these courts are 
 appointed by the President, by and with the advice and 
 consent of the senate of the United States, and with the
 
 400 ELEMENTARY LAW [§ 632 
 
 exception of the judges of the Territorial Courts, they 
 hold office during good behavior. Judges holding during 
 good behavior, who are seventy years old and have 
 served ten years, may retire from office, their compensa- 
 tion continuing during life. Such judges can only be 
 removed from office when they are impeached by the 
 lower house of congress for misconduct in office, and 
 found guilty by the senate of the United States. No 
 law can be passed which will diminish the compensation 
 of a judge during his term. 
 
 § 632. The senate as a court. — By the Constitution 
 of the United States the senate, in addition to its func- 
 tion as a branch of the legislative department of the 
 government, is charged with the duty of hearing and pro- 
 nouncing judgment in all cases where a public officer is 
 impeached for misconduct in office by the lower house of 
 congress. When the senate is trying the President of 
 the United States upon impeachment, the chief justice 
 of the United States presides over its deliberations. 
 
 § 633. Judicial circuits and districts. — The United 
 States is now divided into nine circuits, corresponding 
 to the number of the judges of the Supreme Court. 
 Judicial districts are created from time to time by con- 
 gress as the exigencies of business require. Each state 
 has at least one district and some are subdivided into 
 two or more. 
 
 § 634. Judicial pov^^er of the United States. — The Con- 
 stitution of the United States declares that the judicial 
 power of the United States shall extend to all cases in 
 law and equity arising under the constitution, the laws of 
 the United States, and treaties made or which shall be 
 made under their authority; to all cases affecting ambas-
 
 § 636} COURTS IN GENERAI, 401 
 
 sadors, other public ministers and consuls; to all cases of 
 admiralty and maritime jurisdiction; to controversies to 
 which the United States shall be a party; to controversies 
 between two or more states, between a state and citizens 
 of another state, between citizens of different states, 
 between citizens of the same state claiming lands under 
 grants of different states, and between a state or the 
 citizens thereof and foreign states, citizens or subjects. 
 
 § 635. Exclusive jurisdiction of federal courts. — The 
 
 jurisdiction vested in the federal courts is exclusive of 
 the courts of the several states, in the following matters : 
 
 (1) All crimes and offenses cognizable under the 
 authority of the United States. 
 
 (2) All suits for penalties and forfeitures incurred 
 under the laws of the United States. 
 
 (3) All civil causes of admiralty and maritime juris- 
 diction; saving to suitors in all cases the right of a 
 common-law remedy where the common law is competent 
 to give it. 
 
 (4) All seizures under the laws of the United States 
 on land or on waters not within admiralty and maritime 
 jurisdiction. 
 
 (5) All cases arising under the patent-right or copy- 
 right laws of the United States. 
 
 (6) All matters and proceedings in bankruptcy. 
 
 (7) All controversies of a civil nature, where a state 
 is a party, except between a state and its citizens, or 
 between a state and citizens of other states, or aliens. 
 
 § 636. Concurrent jurisdiction of federal and state 
 courts. — Except where the federal courts have exclu- 
 sive jurisdiction, their jurisdiction is concurrent with that 
 of the state courts. The two systems are of equal 
 
 dignity, and where jurisdiction is concurrent the court 
 26 — Elem. Law.
 
 402 EI.EMENTARY I,AW [§ 637 
 
 which first acquires the jurisdiction over the parties or 
 subject-matter is entitled to retain it free from interfer- 
 ence subject to the right of a citizen of another state to 
 have a case removed from the state court to a federal, 
 court on the ground of diversity of citizenship, 
 
 § 637. Jurisdiction of the Supreme Court of the 
 United States. — In some cases the Supreme Court has 
 original jurisdiction, that is to say the suit may be begun 
 in the Supreme Court. This may be done in all cases 
 affecting ambassadors, other public ministers and consuls, 
 and all cases in which a state is a party. In exercising 
 this original jurisdiction, the Supreme Court causes issues 
 of fact in common-law cases to be determined by a jury. 
 The more important part of the jurisdiction of the 
 Supreme Court is its appellate jurisdiction. Before the 
 act of March 3, 1891, organizing the circuit courts of 
 appeals, the appellate jurisdiction of the Supreme Court 
 was extensive. By that act its jurisdiction was greatly 
 changed, being enlarged in some respects, and in others 
 curtailed. Its appellate jurisdiction at present exists in 
 cases coming to it in the following ways : 
 
 (1) Directly from the district courts. Appeals or 
 writs of error may be taken from this court directly to 
 the Supreme Court, in cases where the jurisdiction of the 
 court is in issue ; in prize cases ; in cases involving the 
 construction or application of the federal constitution, or 
 the constitutionality of any federal law or the validity or 
 construction of treaties. 
 
 (2) From the circuit courts of appeals. An appeal 
 or writ of error is allowed from the circuit courts of 
 appeals to the Supreme Court in all cases, where the mat- 
 ter in controversy exceeds $1,000; except cases in which 
 jurisdiction depends entirely upon citizenship of the par- 
 ties, cases arising under patent, revenue, and criminal
 
 § 637] COURTS IN GENERAI. 403 
 
 laws and cases in admiralty. As to the excepted cases 
 the decisions of the circuit court of appeals are final, 
 unless that court certifies the case or any questions 
 therein to the Supreme Court for its decision. Where 
 questions of importance are involved, the Supreme Court 
 may require any case to be certified to it by the circuit 
 court of appeals. 
 
 (3) From the highest court of a state. Final judg- 
 ments of the highest courts of the states may be reviewed 
 in the Supreme Court of the United States upon writ of 
 error, when such judgment is adverse to a claim or 
 defense based upon the constitution or laws of the United 
 States. If the decision of the state court is in favor of 
 the claim made, the Supreme Court of the United States 
 has no jurisdiction to review it. 
 
 (4) From the courts of the District of Columbia or 
 the territories. The judgments of the court of appeals 
 of the District of Columbia may be reviewed by the 
 Supreme Court of the United States, where the matter 
 involves the question of jurisdiction, prize cases, constitu- 
 tions, treaties and statutes. 
 
 The judgments of the supreme courts of the terri- 
 tories may be reviewed by the Supreme Court of the 
 United States where the federal constitution, statutes or 
 treaties are brought in question; where the validity of 
 any patent or copyright is in question, or where the mat- 
 ter in dispute exceeds $5,000 in value and would have 
 been appealable if the judgment had been by a district 
 court of the United States. 
 
 Judgments from the Supreme Court of Porto Rico or 
 from U. S. District Court of Porto Rico may be reviewed 
 when copyright, treaty, constitution or federal statutes are 
 involved, and all other matters involving over $5,000. 
 
 Appeals lie from the Supreme Court of Hawaii for 
 all cases appealable from state supreme courts and all
 
 404 Ei.e;mentary i<aw [§ 638 
 
 other cases over $5,000. Appeals also lie from the district 
 court of Alaska where case involves prize matters, con- 
 stitution, treaties or federal statutes. 
 
 Cases from the Philippine Supreme Court may be 
 reviewed if they involve federal constitution, treaties or 
 statutes, or sums exceeding $25,000. 
 
 (5) From the court of claims. Appeals are allowed 
 from the cpurt of claims to the Supreme Court of the 
 United States upon all judgments. There is a jurisdic- 
 tional limit of $3,000 in some cases. 
 
 § 638. Jurisdiction of the circuit courts of appeals. 
 
 — The circuit courts of appeals were established by the 
 act of March 3, 1891, there being created one court for 
 each of the nine circuits. Each court is composed of three 
 judges, who may be the justice of the Supreme Court 
 assigned to that circuit, the circuit judges or the district 
 judges within the circuit. 
 
 The circuit court of appeals has only appellate juris- 
 diction, and this only of cases coming from the district 
 courts within the circuit, and of cases coming from terri- 
 torial courts that may be assigned to the circuit. The 
 entire appellate jurisdiction is divided between the 
 Supreme Court and the circuit court of appeals, and the 
 jurisdiction of the latter embraces all the appealable cases 
 except those cognizable by the Supreme Court directly. 
 There is no jurisdictional limit on account of the amount 
 involved. The cases in which the judgment of the circuit 
 court of appeals is final have been shown above. 
 
 § 639. Jurisdiction of the district courts. — The dis- 
 trict courts have original jurisdiction of all matters com^ 
 ing within the general jurisdiction of the federal courts, 
 except the few cases over which the Supreme Court of 
 the United States has original jurisdiction, and the re-
 
 § 64J] COURTS IN GENERAI^ 405 
 
 stricted class of cases coming under the jurisdiction of 
 the court of claims. Prior to March 3, 1911, this general 
 jurisdiction was divided between the district courts and 
 the circuit courts, but by the general reorganization act 
 of that date, the circuit courts were merged with the dis- 
 trict courts. 
 
 § 640. The court of customs appeals. — The Payne- 
 Aldrich tariff law of 1909 created the court of customs 
 appeals, composed of a presiding judge and four associ- 
 ates, whose jurisdiction is to hear appeals from the Board 
 of General Appraisers on questions of law and jurisdic- 
 tion. 
 
 § 641. Jurisdiction of the court of claims. — This 
 court was established for the purpose of regularly investi- 
 gating claims against the government, and thereby reliev- 
 ing and protecting congress. It is composed of five 
 judges, who sit at Washington. 
 
 The court is required to hear and determine, ( 1 ) all 
 claims founded upon the Constitution of the United States, 
 or any law of congress except for pensions, or upon any 
 regulation of an executive department; (2) all claims 
 upon any contract, express or implied, with the govern- 
 ment, or for damages in cases not sounding in tort, in 
 respect of which claims the party would be entitled to 
 redress if the United States were suable, except war 
 claims; (3) all counter demands of the government 
 against any such claimant; (4) petition for adjustment 
 of accounts by debtors of the United States; (5) certain 
 questions that may be submitted by heads of departments, 
 to obtain a precedent for their guidance. It also has 
 jurisdiction in a number of minor matters not of general 
 interest.
 
 406 ELEMENTARY LAW [§ 642 
 
 § 642. United States commissioners. — As auxiliaries 
 to the courts, United States commissioners are appointed 
 by the judges of the circuits, and act as examining 
 magistrates in hearing charges for violation of the laws 
 of the United States, and where a probable case of guilt 
 is made out they admit the accused to bail for his appear- 
 ance before the court having jurisdiction of the offense, 
 or if the offense is not bailable commit the accused to 
 prison. These commissioners have no jurisdiction to pro- 
 nounce final judgment in any case. 
 
 § 643. Courts of the territories and of the District 
 of Columbia. — These are not strictly a part of the fed- 
 eral judicial system. The provisions of the constitution 
 relative to courts of the United States do not refer to 
 courts of the territories. Upon admission of a territory 
 to the Union as a state, it is the state courts and not the 
 federal courts that are the successors of the territorial 
 courts. The jurisdiction of these courts is a matter of 
 special interest only in the locality of the courts. 
 
 § 644. State courts. — The organization and juris- 
 diction of the state courts are matters within the exclusive 
 province of the several states, and it would be out of 
 place here to attempt to consider the subject in detail. 
 There are, however, some general features of the Amer- 
 ican state courts which are common to nearly all of them, 
 and which should be noticed in outline at least. Some 
 of these courts are of limited and inferior jurisdiction, 
 and some are courts of general and superior jurisdiction. 
 
 § 645. Jurisdiction of state courts. — Courts held by 
 justices of the peace, mayors and police judges are courts 
 of inferior and limited jurisdiction. In some civil mat- 
 ters involving small interests, in petty misdemeanors, the
 
 § 645] COURTS IN GENERAI, 407 
 
 judgments of these courts are final, but where the matters 
 involved are more important appeals lie from their judg- 
 ments to courts of superior jurisdiction. These courts 
 also have power to issue warrants for the arrest of 
 offenders of the higher grades, and after examination 
 to discharge, admit them to bail, or where the crime is 
 not bailable to commit them to jail to abide the finding 
 of the grand jury, or the judgment of the court having 
 final jurisdiction. In some of the states the courts of 
 superior jurisdiction are divided and classified as chancery 
 courts, common-law courts (including civil and criminal 
 courts) and probate courts, each having jurisdiction over 
 such subjects as are implied by their names. These courts 
 have original and final jurisdiction over the more im- 
 portant cases subject to review on writ of error by the 
 appellate courts of the states. 
 
 In most of the states, codes have been adopted by 
 which the distinctions in the forms of equity and com- 
 mon-law pleadings have been abolished and one form of 
 action is substituted under which all rights legal and 
 equitable may be enforced. In a few of the states the 
 old distinction between proceedings in equity and at law 
 are still maintained. To ascertain the scope and limits 
 of the jurisdiction of these state courts, recourse must 
 be had to the laws creating them.
 
 CHAPTER LI 
 
 EQUITY COURTS 
 
 Sec. Sec. 
 
 646. Equity jurisdiction. obtained jurisdiction 
 
 647. Injunction — Prohibitory will administer full re- 
 
 and mandatory. lief. 
 
 648. General scope of equity 650. Suit in equity — How com- 
 
 jurisdiction. menced — Pleadings. 
 
 649. A court of equity having 651. Evidence on hearing. 
 
 § 646. Equity jurisdiction. — The jurisdiction of a 
 court of equity pertains to those matters in which the 
 rights of the parties can not be properly ascertained and 
 determined by proceedings at law ; and it is a settled rule 
 that where there is an adequate remedy at law the parties 
 have no right to seek redress in a court of equity. The 
 object of an action at law is to recover damages and a 
 judgment at law is generally enforced by a seizure of 
 the property of the party against whom the judgment is 
 rendered. A decree in equity requires the party against 
 whom it is made to do or refrain from doing some act, 
 and obedience to it is enforced by the court through pun- 
 ishment for contempt. 
 
 Generally it may be said that courts of equity are 
 established to detect latent frauds and concealments which 
 the process of the law is not adapted to reach ; to enforce 
 the execution of such matters of trust and confidence as 
 are binding in conscience, though not cognizable in a 
 court of law; to deliver from such dangers as are owing 
 to misfortune or oversight; and to give a more specific 
 relief, and more adapted to the circumstances of the case, 
 than can always be obtained by the generality of the 
 rules of common law. 
 
 408
 
 § 648] EQUITY COURTS 409 
 
 § 647. Injunction — Prohibitory and mandatory. — 
 
 The aid of a court of equity is sought where it is neces- 
 sary to prevent the doing of some act which will result 
 in such injury to one's property or rights as can not be 
 adequately compensated in damages, as the destruction of 
 trees, the infringement of copyrights or trade-marks, the 
 ■ creating or continuance of a nuisance, the keeping of 
 ferocious animals, the making of noises at unseasonable 
 hours near one's dwelling, and for other causes. Where 
 a proper case is made the court grants a prohibitory in- 
 junction. In a case of emergency the injunction will be 
 temporary and will continue in force until the hearing, 
 when if the complainant makes out his case the injunction 
 will be made perpetual. Where it appears that it is neces- 
 sary that some act be done to prevent or suppress a 
 wrong, what is known as a mandatory injunction will be 
 granted, as where one has created and maintains a 
 nuisance he will be ordered to remove or abate it. 
 
 § 648. General scope of equity jurisdiction. — The 
 
 scope of equity jurisdiction is extensive, as will be seen 
 from the following partial enumeration of cases for its 
 exercise. If the execution of a contract has been pro- 
 cured by fraud, equity will cancel it. If by mistake or 
 fraud a contract has been so framed as not to express 
 the intention of the parties, equity will correct the mistake, 
 reform and enforce the contract according to their real 
 intention. A contract to execute a conveyance of land 
 will be specifically enforced in equity when it appears 
 that the party demanding its enforcement is not himself 
 in default. In such cases, where the decree directs a con- 
 veyance and the party refuses to obey the decree the 
 court may enforce it by attachment, or by appointing some 
 person to make the conveyance. The appointment of 
 receivers to manage, control and dispose of property, the
 
 410 ELEMENTARY LAW [§ 649 
 
 adjustment of accounts between partners and between 
 other persons when by reason of the number and nature 
 of the claims they are too complicated to be settled at 
 law; the setting aside of conveyances made to defraud 
 creditors; to regulate trusts and control the trustee in his 
 dealings with the trust estate; the guardianship and con- 
 trol of infants and their property; applications for relief 
 against forfeitures; to compel the delivery of title deeds; 
 to cancel notes or other forms of contract which are not 
 valid or have been discharged; to determine who of 
 several claimants is entitled to a fund in court or in 
 the hands of a third party who is in doubt as to who may 
 be the rightful claimant; proceedings to foreclose 
 mortgages, or to redeem property from sales at fore- 
 closure; these are all matters which are properly cog- 
 nizable in courts of equity. 
 
 § 649. A court of equity having obtained jurisdic- 
 tion will administer full relief. — A\'here a court of 
 equity obtains jurisdiction of the subject-matter of the 
 controversy, it will retain it until all the rights of the 
 parties litigant are finally determined. And where, in the 
 course of the proceedings, it becomes necessary to pass 
 upon the legal as well as the equitable rights of the par- 
 ties, the court will proceed to a final adjudication of them 
 all, disposing of legal matters according to the principles 
 of law, and disposing of questions of equity according 
 to the settled rules of equity. 
 
 § 650. Suit in equity — How commenced — Pleadings. 
 
 — A suit in equity is commenced by filing a bill in which 
 the plaintiff sets forth in detail, without repetition, the 
 facts upon which he bases his claim for equitable relief. 
 Upon the filing of the bill a subpoena, or summons, is 
 issued, which is served as in actions at law. If the de-
 
 § 651] EQUITY COURTS 411 
 
 fendant does not appear, he is defaulted and a decree is 
 taken against him by default. He usually appears by a 
 solicitor when he desires to make a defense, and upon a 
 day named, called a rule day, he is required to plead, 
 answer or demur to the bill. A demurrer to a bill is 
 based upon some alleged defect in its form or substance. 
 If the demurrer is sustained the plaintiff can amend his 
 bill; if it is overruled the defendant can plead to the bill 
 or file an answer thereto. A plea to a bill is based upon 
 some special matter of defense to the whole bill or a part 
 of it, and if it is sustained the plaintiff may amend, if 
 he can do so. If he can not amend so as to avoid the 
 force of the plea, it will bar his recovery upon so much 
 of the bill as is covered by the plea. If the plea is over- 
 ruled the respondent must answer or a decree will go 
 against him. An answer in equity, like an answer in an 
 action at law, may be in the form of a denial of the 
 allegations of the bill, or a confession of the substance of 
 them and the setting up of new matter which constitutes 
 a defense thereto. If the defendant is not content with 
 defeating the plaintiff, but claims that he has a right to 
 some affirmative relief, he files what is known as a 
 cross-bill, in which the facts upon which he bases his 
 claim for relief are set out as fully as is required in the 
 original bill, and to this cross-bill there may be filed a 
 demurrer, plea or answer. Following the answer is the 
 general replication which puts the case at issue. Before 
 filing a replication, an answer which is insufficient may 
 be excepted to, and if the exceptions are sustained a fur- 
 ther answer will be required. 
 
 § 651. Evidence on hearing. — The case being at is- 
 sue the parties proceed to the taking of the evidence 
 which is in the form of depositions made before an 
 examiner, commissioner or some other officer authorized
 
 412 EI^EMENTARY LAW [§ 65l 
 
 by law. Sometimes to expedite the hearing of a cause 
 the witnesses are allowed to appear in court and testify 
 as in actions at law. Equity cases are ordinarily heard 
 and decided by the judge without the intervention of a 
 jury. Where the case seems to require it the court may 
 frame an issue of fact to be tried by a jury, but this 
 is an interlocutory proceeding to aid the court in mak- 
 ing the final decree. The rules as to the competency of 
 witnesses and the relevancy and admissibility of evidence 
 are the same as in actions at law. The decree of the 
 court is final as to the subject-matter and the parties 
 before the court, and if a party is aggrieved thereby he 
 has his remedy by appeal to a higher court, or by filing 
 another bill in the same court in the nature of a bill of 
 review, which is based upon alleged errors on the face of 
 the record or the discovery of new and material evidence.
 
 CHAPTER LII 
 
 ADMIRALTY LAW AND PROCEDURE 
 
 Sec. Sec. 
 
 652. Origin and history. 654. Admiralty procedure. 
 
 653. Admiralty jurisdiction. 
 
 § 652. Origin and history. — Admiralty law and pro- 
 cedure, as they formerly prevailed in England, were under 
 the superintendency of the courts of common law, which 
 had power to keep the courts of admiralty within their 
 jurisdiction, and to restrain and prohibit any excess of 
 power. The proceedings of the admiralty courts were 
 according to the method of the civil law, and were for- 
 merly held before the lord high admiral of England and 
 such tribunal was not a court of record. By parliament- 
 ary enactments the jurisdiction of these courts has been 
 enlarged and their dignity elevated. They had civil and 
 criminal jurisdiction. In them persons were tried for 
 crimes committed on the high seas or on the coasts of 
 England or its colonies, but as they proceeded without a 
 jury, and the accused was liable to be tried and con- 
 demned upon the opinion of a single judge, parliament 
 enacted, in the reign of Henry VHI, that these offenses 
 should be tried by the admiralty court with the aid of 
 three or four of the common-law judges. An indictment 
 was necessary, and the right to trial by jury according 
 to the law of the land was secured to the prisoner. 
 
 The system as it prevailed in our colonies gave the 
 vice admirals a much larger jurisdiction than the courts 
 of admiralty in the mother country exercised at that time. 
 
 § 653. Admiralty jurisdiction. — Article 3, section 3, of 
 
 413
 
 414 e;le;me:ntary law [§ 653 
 
 the Constitution of the United States, confers admiralty 
 jurisdiction upon the courts of the United States. These 
 courts have declared as the settled doctrine under the 
 constitutional grant of jurisdiction that it means the 
 jurisdiction which had been and was exercised in ad- 
 miralty in this country prior to and at the time the con- 
 stitution was adopted, and not admiralty jurisdiction as 
 it was understood in England or Continental Europe. 
 This interpretation, first announced by Judge Story on 
 the circuit, was combatted by other federal judges, but 
 it is now settled law that the jurisdiction embraces the 
 water-borne commerce of the United States conducted 
 on its internal navigable waters as well as on the high 
 seas, and has grown to include all maritime services and 
 contracts, and all injuries when inflicted upon such waters. 
 For a time it was attempted to restrict the jurisdiction 
 to such navigable waters only as where affected by the 
 ebb and flow of the tide, but the Supreme Court has estab- 
 lished the doctrine that the constitutional grant extends 
 the jurisdiction not only to such waters, but over all the 
 navigable waters, canals and rivers of the nation and 
 wherever ships float and navigation successfully aids 
 commerce, whether internal or external. 
 
 Admiralty jurisdiction as to torts is confined to wrongs 
 committed on the water. It extends to matters happening 
 during voyages between two ports in the same state and 
 to matters happening in foreign waters. Jurisdiction does 
 not depend on citizenship of the parties, and where 
 foreigners appeal to our admiralty courts, their contro- 
 versies will be adjudicated. All ships are prima facie 
 subject to admiralty jurisdiction, but there are exceptions 
 as to foreign vessels of war belonging to friendly nations, 
 and vessels engaged in the service of a city government. 
 Generally stated, the subjects of maritime jurisdiction are 
 maritime contracts, touching rights and duties appertain-
 
 § 654] ADMIRALTY LAW AND PROCEDURE) 415 
 
 ing to commerce and navigation, and also all torts or 
 injuries of a civil nature committed on navigable waters. 
 As to torts the test of jurisdiction is locality, as to con- 
 tracts it depends on the subject-matter. Contracts for 
 building vessels and for labor and materials in their con- 
 struction are not maritime contracts. As to torts, they 
 must be torts for which the vessel is liable, and an assault 
 by one passenger on another is not a subject of admiralty 
 jurisdiction. It is otherwise where the wrong is com- 
 mitted by the officers or crew of the vessel. All prize 
 cases and controversies about the distribution of prize- 
 money are for the admiralty courts. The jurisdiction of 
 the United States courts in admiralty cases is exclusive, 
 and it is lodged in the district courts. If the district court 
 is improperly proceeding with a cause under claim of 
 admiralty jurisdiction, the Supreme Court may issue its 
 writ of prohibition to restrain it from going further, 
 
 § 654. Admiralty procedure. — The forms of pro- 
 cedure in admiralty are prescribed by rules formulated by 
 the Supreme Court of the United States. The pleadings 
 are simple and the rules as to allowing amendments are 
 very liberal. Whenever a vessel or cargo is seized it is 
 common practice to release it if the owner, who is called 
 the claimant, makes a stipulation with security, that he 
 will pay the demand of the plaintiff or libelant, as he is 
 -'.ailed, if there is an adjudication in his favor. The libel, 
 which is the first pleading filed, must show a case for 
 admiralty jurisdiction, and if it is filed for the benefit 
 of all who are interested in like claims against the vessel 
 it must so state. One peculiarity about the practice is 
 that recoupment is allowed in cases of tort and contract, 
 even when it goes to the extent of compelling contribu- 
 tions among joint tort-feasors. In case of collision the 
 damages may be apportioned according to the degree of
 
 416 ELlCMENTARV LAW [§ 654 
 
 neelisfence where both vessels are to blame. In taking 
 evidence, the rules are very lax and this results from 
 the nature of the case, the witnesses being seafaring men, 
 and their places of residence and movements being often 
 sudden and uncertain. Unless the statute expressly re- 
 quires it, there is no jury trial. Where there is a vari- 
 ance between the evidence and pleadings, it will not be 
 fatal unless it is so great as to mislead the court. The 
 decision is against the vessel and all persons over whom 
 the court obtained jurisdiction. Such decrees are good 
 against all the world, so far as the vessel or cargo is 
 concerned, and can not be questioned even in the courts 
 of a country whose vessel has been seized and condemned 
 in a foreign port by a foreign tribunal.
 
 CHAPTER LIII 
 
 CIVIL PROCEDURE 
 
 Sec. Sec. 
 
 655. Scope of chapter. 669. 
 
 656. Civil actions — C o u r t s — 670. 
 
 Their officers — Juries. 
 
 657. Actions, how commenced 671. 
 
 —Parties. 672. 
 
 658. The process. 673. 
 
 659. How served and returned. 
 
 660. Matters of defense. 
 
 661. Objection to jurisdiction, 674. 
 
 how and when made. 675. 
 
 662. Answers or pleas in abate- 676. 
 
 ment. 
 
 663. Issues of fact and issues 
 
 of law. 677. 
 
 664. The jury. 
 
 665. Trial. 678. 
 
 666. Evidence. 
 
 667. Functions of court and 679. 
 
 jury as to evidence. 
 
 668. Things which need not be 680. 
 
 proved, or of which 681. 
 courts take judicial 
 notice. 682. 
 
 Written and oral evidenoe. 
 
 Attendance of witnesses, 
 how procured. 
 
 Competency of witnesses. 
 
 Hearsay evidence. 
 
 Exceptions to the rule ex- 
 cluding hearsay evi- 
 dence. 
 
 Examination of witnesses. 
 
 Burden of proof. 
 
 Arguments of counsel and 
 instructions of the 
 court 
 
 Deliberations of jury and 
 verdict. 
 
 Motion to set verdict aside 
 and for a new trial. 
 
 Motion in arrest of judg- 
 ment. 
 
 Forms of judgments. 
 
 Appeals and writs of 
 error. 
 
 Execution. 
 
 § 655. Scope of chapter. — We will now consider 
 the order in which civil actions are commenced and pros- 
 ecuted to final judgment. Owing to the diversity of 
 legislation :n the code states and the practice that has 
 grown up in these states under the rulings of the courts, 
 it is manifestly impossible in our limited space to give 
 the order and rules of proceeding and practice in all the 
 states, and we shall content ourselves witli some general 
 statements which will apply to most if not all of them, 
 27 — Elem. Law. 417
 
 418 ELEMEINTARY LAW [§ 656 
 
 § 656. Civil actions — Courts — Their officers — Ju- 
 ries. — An action is a proceeding in a court by a plain- 
 tiff against a defendant, to establish a right or to obtain 
 a remedy. In every court there must be a judge, wbose 
 duty it is to preside and direct the proceedings of the 
 court and to decide such matters of law or fact as may 
 be submitted to him ; a clerk, whose duty it is to keep a 
 faithful minute and record of all the proceedings of tho 
 court and to perform such other duties as the law and 
 rules of practice may require ; a sheriff or bailiff, who is 
 to maintain order in the court, to obey the orders of 
 the judge and to serve the process of the court. It is 
 the duty of the jury, under the directions of the court 
 as to matters of law, to decide the questions of fact sub- 
 mitted to them, and to put their decision in the form 
 of a verdict, to which they unanimously agree. 
 
 § 657. Actions, how commenced — Parties. — In every 
 action there must be two adversary parties and a real 
 controversy. Courts are not organized for the purpose 
 of deciding abstract questions of law unless it is neces- 
 sary to establish the substantial rights of the parties to 
 the action. To begin and prosecute a fictitious proceeding 
 in a court is a contempt of court. The plaintiff begins 
 his suit by filing in the proper court a statement in writ- 
 ing showing the facts upon which he bases his claim for 
 redress. This is called a declaration, complaint, petition 
 or bill. 
 
 § 658. The process. — The clerk issues a writ bear- 
 ing the seal of the court and attested by the clerk, which 
 is delivered to the sheriff for service upon the defendant 
 who is named in the writ. The writ or summons requires 
 the defendant to appear and plead to the action by a day 
 specified, and must be served as required by law, either
 
 § 660J CIVIL procedure; 419 
 
 by reading it to the defendant in person, by leaving a 
 copy of it at his usual place of residence, or by leaving 
 a copy at some other place designated by law. Sometimes 
 the form of the action is such that the writ issued re- 
 quires tlic sheriff to seize the person of the defendant or 
 goods in his possession. And in cases of foreign attach- 
 ment the goods of a defendant may be seized in a state 
 where he is not a resident to satisfy plaintiff's claim. In 
 actions wJiere the defendant can not be served with 
 process, and the court has jurisdiction of the subject- 
 matter of the controversy, constructive notice is given by 
 publication in a newspaper, or service of summons may 
 ])e made upon defendant in another state, wdien tlie statute 
 allows it. But in cases where constructive notice alone 
 is given, the judgment of the court is binding upon the 
 defendant only so far as it relates to the property wathin 
 the jurisdiction of the court, 
 
 § 659. How served and returned. — If the sheriff 
 finds the defendant, it is his duty to serve the process, 
 to indorse upon it the time and manner of service, and 
 to return and file it with the clerk who issued it. The 
 defendant may not wish to contest the action, in which 
 case he fails to appear in court, and judgment is taken 
 against him by default. If he wishes to defend he must 
 enter his appearance and file his defense according to the 
 rules of practice of the court where the action is pending. 
 
 § 660. Matters of defense. — If a defendant denies 
 the right of the court to hear the controversy, he objects 
 to the jurisdiction. If the court has jurisdiction and the 
 suit is properly brought, the defendant may be willing to 
 admit that the facts stated in plaintiff's complaint are 
 true, but may insist that they are not sufficient in law 
 to entitle the plaintiff to the redress he seeks; in such
 
 420 ELEMENTARY LAW [§ 661 
 
 case he files a pleading called a demurrer, and if the 
 court sustains the position of the defendant, judgment 
 is given against the plaintiff, who has the option to amend 
 his faulty pleading, or to appeal from the judgment. In 
 the same way a demurrer may be interposed to a defective 
 answer or reply, if it does not in the opinion of plaintiff 
 state facts sufficient to constitute a good defense or reply. 
 A demurrer raises what is called an issue of law. A 
 pleading which denies the allegations of another pleading 
 raises an issue of fact. An answer which admits the 
 sufficiency of the complaint, but alleges new matter which 
 makes a good defense to plaintiff's claim, is called an 
 answer in confession and avoidance. 
 
 § 661. Objection to jurisdiction, how and when 
 made. — A defendant who wishes to object to the juris- 
 diction of the court over the parties to^ the suit must 
 enter a special appearance for that purpose. If he enters 
 his appearance generally, he waives his right to make 
 such a plea. But if the court has no jurisdiction over the 
 subject-matter, all proceedings in regard to it are void. 
 If a defendant is sued in one jurisdiction, when he has 
 a right to demand that he should be sued in another, he 
 can give the court jurisdiction by appearing to the action 
 or by failing to plead to the jurisdiction. If one court 
 should proceed to try an action in relation to a matter, 
 the jurisdiction of which by law belongs exclusively to 
 another court, all its proceedings would be void. If the 
 facts showing want of jurisdiction appear upon the 
 face of plaintiff's complaint, the court will dismiss the 
 action upon the motion of the defendant. If the facts 
 do not so appear they must be brought to the attention 
 of the court by a special plea to the jurisdiction. 
 
 § 662. Answers or pleas in abatement. — A defend-
 
 § 664] civil. PROCEDURE 421 
 
 ant may file an answer in abatement, and this may be 
 based on defects in the process, defects in the service of 
 process, incapacity of plaintiff to sue, incapacity of the 
 defendant to be sued, misdescription of the parties, plain- 
 tiff or defendant, misjoinder of parties, nonjoinder of 
 parties, another action pending for the same cause 
 between the same parties. Some of these defects may be 
 brought to the attention of the court by demurrer or 
 motion, according to the practice of the court where the 
 action is pending. It will be seen that none of the 
 defects above named go to the merits of the controversy, 
 and most of them may be cured by amendment. An 
 answer in abatement is a dilatory answer, and ordinarily 
 it must be filed and disposed of before the case is tried 
 on its merits. 
 
 § 663. Issues of fact and issues of law. — When the 
 parties are at issue upon a question of law alone, the 
 judge decides it. An issue of fact is submitted to a jury, 
 unless the parties waive a jury and consent to a trial by 
 the court. 
 
 § 664. The jury. — A jury is a body usually of twelve 
 men summoned from the residents or citizens of the 
 county where the case is tried who are impaneled and 
 sworn to try the issues in the case and to render a true 
 verdict according to the law and the evidence. What is 
 called the regular venire is a body of men summoned to 
 serve as jurors generally during all or a portion of the 
 term of court. A special venire is a body of men selected 
 and summoned to try a particular case. When a regular 
 or special venire is exhausted by challenges or other cause, 
 without securing the requisite number, a new venire is 
 issued or the number is made up from bystanders who 
 have the requisite qualifications to serve as jurors.
 
 422 ELEMENTARY LAW [§ 665 
 
 Before the jurors are sworn to try the case, either party 
 may object to them as a body or to the jurors individually. 
 The first objection may be based upon an irregularity or 
 defect in the manner of making up or serving the venire, 
 or the misconduct or partiality of the sheriff by whom it 
 is served. The second objection is based upon the legal 
 disqualification of the jurors objected to, or on account 
 of their bias in favor of one of the parties. The first 
 objection is called a challenge to the array, the second is 
 called a challenge to the polls. There are two kinds of 
 challenges to the polls. Where the ground of a challenge 
 is the bias of the juror it is a challenge for cause. Where 
 the challenge is without cause it is a peremptory challenge. 
 The right to use the peremptory challenge in civil cases 
 is limited to a small number, usually two or three. The 
 right to the challenge for cause is without limit as to 
 number, it being essential that all of the twelve jurors 
 should be able to hear and decide the case without 
 partiality or bias. 
 
 § 665. Trial. — The jury being impaneled and sworn 
 to try the case, the counsel of the parties read the plead- 
 ings or state the substance of them to the jury, together 
 with a summary of the evidence which they expect to 
 produce in support of the issues. 
 
 § 666. Evidence. — Evidence includes all the means 
 by which an alleged matter of fact, the truth of which 
 is submitted to investigation, is established or disproved. 
 Proof is the effect of evidence. Evidence consists of 
 statements made by witnesses under oath in relation to 
 matters of fact under inquiry, and of documents produced 
 for the inspection of the jury and court. There are three 
 degrees or kinds of evidence, namely, conclusive, prima 
 facie, and evidence tending to prove. Conclusive evidence
 
 § 666] civiiv PROCEDURE 423 
 
 is such as when produced excludes all evidence to the 
 contrary. Prima facie evidence is such as in the absence 
 of evidence to the contrary is sufficient to establish the 
 existence of a fact. Evidence tending to prove a fact 
 is any competent evidence which tends to establish the 
 existence of a fact in issue. Competent evidence is that 
 which the very nature of the thing to be proved requires, 
 and is the best evidence that the nature of the case admit* 
 of. If the question is as to the contents of a written instru- 
 ment, the instrument itself is the best evidence. If the 
 instrument be lost or destroyed or beyond the jurisdiction 
 of the court, oral testimony as to its contents may be 
 given, and in such case it is competent, being the best 
 that the nature of the case admits of. Sufficient or satis- 
 factory evidence is such as will reasonably satisfy an un- 
 prejudiced mind of the existence of a fact. Corroborative 
 evidence is additional evidence of the same character to 
 support the same point as other evidence already given, 
 and it may be a repetition of evidence given as to a fact, 
 or evidence of another fact which makes the existence of 
 the fact already testified to more probable. Cumulative 
 evidence means more of the same kind of evidence and 
 to the same point, and is a species of corroborative evi- 
 dence. Relevant evidence is such as directly touches upon 
 the issue the parties have made in their pleadings so as 
 to assist in getting at the truth. Evidence is sometimes 
 designated as "admissible," "proper," or "material," but 
 the terms competent and relevant comprehend them all. 
 Direct evidence is such as is given by persons who testify 
 from personal knowledge of the facts. Indirect or cir- 
 cumstantial evidence consists of a fact or group of facts 
 testified to by persons having a personal knowledge of 
 them, from which the existence of another fact or facts 
 may be inferred.
 
 424 Eleme;ntary law [§ 667 
 
 § 667. Functions of court and jury as to evidence. — 
 
 Questions as to the competency and relevancy of evidence 
 are decided by the court. The weight of the evidence, 
 or what it proves, is a question for the jury. 
 
 § 668. Things which need not be proved, or of 
 which courts take judicial notice. — There is a class of 
 facts which need not be proved, and which are presumed 
 to be known to the judge and jury. They are facts of 
 which courts take judicial notice, as of the existence of 
 nations, of national flags and seals, of the titles of 
 sovereigns or rulers, of public acts, decrees and judg- 
 ments certified under the seal of foreign nations, of the 
 public laws of the state in which the court is held, of the 
 usages of commercial business, of the genuineness of a 
 notary's seal, of the geographical boundaries of states and 
 nations, of the distances of cities and towns from one 
 another. In short, the court will take judicial notice of 
 what ought to be generally known within the limits of 
 their jurisdiction, and if the memory of the judge is at 
 fault, he may resort to books, maps or other documents 
 to refresh his memory. 
 
 § 669. Written and oral evidence. — Evidence is writ- 
 ten or oral. Written evidence consists of all written 
 agreements, instruments, records, public or private, the 
 production and contents of which tend to establish or 
 disprove any material fact in issue. Oral evidence con- 
 sists of the viva voce statements made by witnesses in 
 open court under oath. Oral evidence is allowed where 
 it relates to facts observed by the witness, or in case of 
 experts to matters of opinion. A deposition is the oral 
 evidence of a witness who can not be produced at the 
 trial, which has been reduced to writing by some com- 
 petent person, in the presence of the parties. It is in
 
 § 671] CIVIL PROCEDURE 425 
 
 the form of questions and answers. When properly taken 
 upon due notice, and filed in court, it may be read to the 
 jury. 
 
 § 670. Attendance of witnesses, how procured. — 
 
 The attendance of witnesses within the jurisdiction of 
 the court is procured by the issuing and service upon the 
 witness of a writ which is called a subpoena. This re- 
 quires him to appear in court upon a day named and to 
 remain in attendance until discharged by the court. The 
 subpoena is usually served by the sheriff, by reading it 
 to the witness in person or by leaving a copy for him 
 at his residence. When served the officer returns the 
 subpoena to the clerk with his indorsement thereon show- 
 ing the time and manner of service. If, in addition to 
 the testimony of the witness, the party calling him wishes 
 him to produce at the trial any document in his posses- 
 sion, there is a clause inserted in the subpoena requiring 
 him to bring with him the document named, giving a 
 particular description of it, so that the witness may know 
 precisely what is wanted. Such a subpoena is called a 
 subpoena duces tecum. If a witness refuses to obey a 
 subpoena, an attachment will be issued against him, and 
 in a proper case he will be punished for a contempt of 
 court. 
 
 § 671. Competency of witnesses. — Before the enact- 
 ment of recent statutes on the subject, many persons who 
 are now competent witnesses were held to be incompetent, 
 on account of their interest in the result of the suit, their 
 relation to the parties and upon other grounds not neces- 
 sary to be enumerated. By the law of most if not all 
 of the states, these objections which formerly went to 
 the competency of the witness now go to his credibility. 
 There still remains a rule which is almost universal which
 
 426 ELEMENTARY EAW [§ 672 
 
 excludes from the consideration of the court and jury 
 what are called privileged communications. These are 
 communications between priest and penitent, husband and 
 wife, physician and patient, attorney and client. Secrets 
 of state are also privileged, and a witness can not be 
 compelled to testify to any fact which would tend to 
 expose him to prosecution for crime. 
 
 § 672. Hearsay evidence. — Hearsay evidence is what 
 a witness says he heard somebody else say, and such 
 evidence is generally excluded. The reasons for the rule 
 are obvious. To allow such evidence would enable the 
 party producing it to get before the jury the statements 
 of persons who were not testifying under the sanction 
 of an oath, and were not subjected to cross-examination. 
 There is the danger also that the witness testifying to 
 the statement may not have heard all of it, or may have 
 remembered it imperfectly. It is a weak sort of evidence 
 at best, and to admit it would be to furnish strong tempta- 
 tions to impose upon the court and jury false and 
 fabricated evidence. 
 
 § 673. Exceptions to the rule excluding hearsay- 
 evidence. — There are, however, some declarations that 
 in strictness might be called hearsay, which are admissible 
 in evidence: 
 
 (1) Where the fact that the declaration was made 
 and not its truth or falsity is the point in question. 
 
 (2) Expressions of bodily or mental feelings where 
 the existence of such feelings is the subject of inquiry. 
 
 (3) In cases of disputed pedigree, the declarations of 
 the members of the family asserting kinship, entries in 
 the family bible, inscriptions on mural tablets or tomb- 
 stones are admissible. 
 
 (4) Declarations accompanying an act and which tend
 
 § 675] CIVIL PROCEDURE 427 
 
 to show the intent, or any statement made at the time 
 and forming a real part of the transaction. 
 
 (5) Dying declarations of the victim of a homicide, 
 made under the apprehension of death, concerning the 
 identity of the slayer and the circumstances of the killing. 
 
 (6) Where a statement is made by a witness out of 
 court inconsistent with his testimony in court it can be 
 proved to impeach his veracity. 
 
 (7) Where the statement is made by a party to the 
 suit, or by his authorized agent, in relation to the matter 
 in controversy, and which is against the interest of the 
 party. 
 
 § 674. Examination of witnesses. — The order of the 
 examination of witnesses is as follows : First, the direct 
 examination by the counsel of the party calling the wit- 
 ness; second, the cross-examination by the counsel of the 
 opposite party; and, third, the redirect examination by 
 the counsel of the party calling the witness. As a general 
 rule leading questions, or questions which suggest the de- 
 sired answer, can not be asked of a party's own witness. 
 A witness who surprises the party who calls him by giv- 
 ing adverse evidence may be asked leading questions on 
 his direct examination, and the same privilege is allowed 
 to a party who is compelled to call a witness who is 
 hostile to him. On cross-examination leading questions 
 are allowed. A witness may refresh his memory while 
 testifying by referring to a written memorandum, but if 
 he does so the opposite party has a right to inspect the 
 memorandum and cross-examine the witness in relation 
 thereto. 
 
 § 675. Burden of proof. — The burden of proof in 
 civil cases rests upon the party making an allegation, 
 and the plaintiff must establish his right to a verdict by
 
 428 ELEMENTARY LAW [§ 676 
 
 producing a preponderance of the evidence. Where the 
 defendant makes an affirmative defense, the burden of 
 proving it rests upon him. This burden is sometimes 
 shifted from one party to the other. 
 
 § 676. Arguments of counsel and instructions of the 
 court. — When the evidence is closed counsel address 
 the jury in the order in which the evidence was produced, 
 the party upon whom the burden of proof rests having 
 the right to open and close the argument. After the 
 arguments are made, the judge instructs the jury in the 
 rules of law which are applicable to the facts proved. 
 Counsel have a right to request the court to give specific 
 instructions, and if they state the law and are applicable 
 to the case, it is the duty of the judge to give them. A 
 refusal to give them, or the giving of erroneous instruc- 
 tions, furnish grounds for a new trial to the party injured 
 by them. 
 
 § 677. Deliberations of jury and verdict. — After the 
 instructions are given the jury are conducted to a room 
 where they are kept in charge of an officer of the court 
 until they have unanimously agreed upon a verdict. A 
 verdict may be general or special. A general verdict is 
 expressed in general terms, and finds the issue for the 
 plaintiff or defendant. A special verdict is where the 
 jury, by request of the parties or of their own motion, 
 write out a statement of the facts found by them in 
 detail, leaving it for the court to decide upon the facts 
 so found, whether the judgment should be given for the 
 plaintiff or defendant. When they have so agreed they 
 reduce the verdict to form, cause their foreman to sign 
 it, and then bring it into court, where it is delivered to 
 the clerk, who reads it and asks the jury if it is their 
 verdict. If they assent it is recorded. If either party
 
 § 679] CIVIL PROCEDURE 429 
 
 requests it the jury is polled, which is done by calling 
 each juror separately by name and asking him if the ver- 
 dict is his. If any juror answers in the negative they are 
 sent back to their room for further deliberation. If the 
 jury say they are unable to agree upon a verdict, and 
 the judge is satisfied that such is the fact, he may dis- 
 charge them, in which event the case must be tried again. 
 
 § 678. Motion to set verdict aside and for a new 
 trial. — The party against whom the verdict is given 
 may move to set it aside and for a new trial. Such motion 
 may be based upon several grounds, as that the jury 
 was guilty of corruption or gross misconduct; that one 
 or more of the jurors had fraudulently procured himself 
 to be impaneled and sworn after he had formed and ex- 
 pressed an opinion as to the merits of the case; that 
 some one in the interest of the prevailing party had tam- 
 pered with the jury; that the verdict was contrary to law 
 or the evidence or that the court instructed the jury 
 improperly as to the law. To establish misconduct on the 
 part of the jurors resort must be had to the testimony of 
 witnesses other than jurors, it being a rule that no juror 
 will be heard to testify against the verdict, but he is per- 
 mitted to testify in support of it. If the motion is over- 
 ruled judgment will be rendered according to the verdict, 
 and this will stand as a final adjudication of the rights 
 of the parties unless a higher court, for good cause shown, 
 reverses the judgment. 
 
 § 679. Motion in arrest of judgment. — Another way 
 of getting rid of an adverse verdict is by a motion in 
 arrest of judgment. This motion is based upon some 
 apparent defect or omission in the record which makes it 
 improper for the court to give judgment on the verdict, 
 as where after verdict for the plaintiff it appears that
 
 430 ELEMENTARY LAW [§ 680 
 
 his complaint does not contain allegations sufficient to 
 constitute a cause of action. When the verdict is set 
 aside on this motion, the plaintiff, if he desires to con- 
 tinue his suit, must amend his complaint, and when the 
 issues are newly made the case will stand for retrial. 
 When a plea or answer confesses a cause of action and 
 relies upon matter in avoidance which is insufficient, 
 although found to be true by the verdict, to constitute a 
 defense or bar to the action, the court will render judg- 
 ment for the plaintiff, notwithstanding the verdict. 
 
 § 680. Forms of judgments. — Of judgments there 
 are various kinds: (1) Judgment by confession is given 
 against a party who appears in court in person or by 
 attorney and admits the plaintiff's claim. (2) Judgment 
 by default is taken against a party who has been served 
 with a summons to appear to an action and fails to do 
 so. (3) Judgment upon nonsuit is taken against a plain- 
 tiff who, after bringing his suit, fails or refuses to prose- 
 cute it. (4) Judgment upon demurrer is where an issue 
 of law raised by demurrer is decided by the court, and 
 the party against whom the decision is made refuses to 
 proceed further, in which case judgment is rendered 
 against him. (5) Judgment upon the verdict is where 
 the court enters upon the record its sentence in accord- 
 ance with the verdict. (6) An interlocutory judgment is 
 a judgment which decides not the cause, but only settles 
 some intervening matter relating to the cause. (7) A 
 final judgment is a judgment which disposes of the 
 whole merits of the cause and leaves nothing for further 
 consideration of the court. 
 
 § 681. Appeals and writs of error. — After final judg- 
 ment, the defeated party, if not content, goes to a higher 
 court upon an appeal or writ of error. By the practice
 
 § 682] civiiv PROCEDURE 431 
 
 in some states an appeal takes the whole case to a higher 
 court, where it is tried again on the merits. In othei 
 states an appeal to the higher court is for the purpose of 
 having the record reviewed, to see if the proceedings of 
 the court below have been according to law. A writ of 
 error removes the cause from the court where final judg- 
 ment was given, and the record is reviewed for the pur- 
 pose above named. In either case, upon appeal or error, 
 the judgment of the court below is affirmed, reversed or 
 modified, and the cause is then sent to the court where 
 the judgment was entered to be proceeded with or disposed 
 of according to the decision of the higher court. 
 
 § 682. Execution. — AVhen the case is finally adju- 
 dicated and all motions and appeals and writs of error 
 are disposed of, the successful party is entitled to have 
 his execution, which is a process issuing out of the court 
 where judgment is given, directed to the sheriff and re- 
 quiring him to satisfy the judgment by seizure and sale 
 of the property of the party against whom the judgment 
 is rendered. The manner in which this process is to be 
 executed depends upon the provisions of the statutes on 
 that subject.
 
 CHAPTER LIV 
 SPECIAL PROCEEDINGS 
 
 Sec. 
 
 
 Sec. 
 
 
 683. 
 
 Contempt. 
 
 687. 
 
 Garnishment. 
 
 684. 
 
 Direct and indirect or con- 
 
 688. 
 
 Capias. 
 
 
 structive contempt. 
 
 689. 
 
 Arbitration. 
 
 685. 
 
 Attachment. 
 
 690. 
 
 Accord and satisfaction 
 
 686. 
 
 How writ served. 
 
 691. 
 
 Partition. 
 
 § 683. Contempt. — Contempt is disorderly, con- 
 temptuous or insolent language or behavior in the presence 
 of a legislative or judicial body tending to disturb its pro- 
 ceedings or to impair the respect due to its authority; or 
 a disobedience to the rules or orders of such a body which 
 interferes with the due administration of the law; or 
 speaking or writing contemptuously of the court or judges 
 acting in a judicial capacity; or by printing false accounts 
 and disrespectful comments upon the court concerning 
 causes then on trial. The power to punish for contempt 
 is inherent in courts, though in many states laws have 
 been enacted which define and limit the power, and in 
 some cases provide for appeals. The power of legislative 
 bodies to punish for contempt does not reside in inferior 
 legislative bodies, such as town councils. Contempt of 
 court may be committed by inferior judges or magistrates, 
 who refuse to obey the lawful orders of the superior 
 courts; by sheriffs or other officers of the court in oppres- 
 sion or neglect of duty; by attorneys in breach of 
 decorum or acts of gross injustice; by jurors in miscon- 
 duct after they are impaneled and sworn; by persons 
 summoned as witnesses refusing to obey the summons; 
 by editors and publishers who, pending a cause, print 
 
 432
 
 § 685] SPECIAL PROCEEDINGS 433 
 
 statements concerning the court, jury or parties, calculated 
 to influence the decision; by persons who knowingly 
 interfere with property in the custody of the officers of 
 the court ; by persons who do not obey injunctions granted 
 by the court. 
 
 § 684. Direct and indirect or constructive contempt. 
 
 — Where the act constituting the contempt is in the 
 presence of the court it is a direct contempt, and the court 
 proceeds at once to punish the offender without hearing 
 testimony. Where the act is not in the presence of the 
 court it is an indirect or constructive contempt, and in 
 such cases it is usual to issue a summons to the party to 
 appear in court in person and show cause why he should 
 not be punished for contempt. The accused will be 
 allowed to file an affidavit or to state facts orally on oath 
 showing that he did not mean any disrespect to the court ; 
 or he may be compelled to answer questions put to him 
 under the direction of the court, and if it appears upon 
 the hearing that the accused acted in good faith and 
 without any intention to be disrespectful to the court he 
 will usually be discharged. When adjudged guilty the 
 court may fine or imprison the offender. 
 
 § 685. Attachment. — Attachment is a proceeding in 
 aid Qf an action at law by which, at or after the com- 
 mencement of the action, the plaintiff causes the seizure 
 of the defendant's property to secure the satisfaction of 
 any judgment he may recover in the action. To pro- 
 cure this seizure the plaintiff must make an affidavit 
 showing that the defendant is indebted to him in a sum 
 named; that he has sold or is about to sell and dispose 
 of his property subject to execution, with the intent to 
 delay or defraud his creditors ; or that he is not a resident 
 of the state where the suit is pending. These are the 
 28— Elem. Law.
 
 434 ELEMENTARY LAW [§ ^'>f^ 
 
 usual causes which are alleged as a basis for the pro 
 ceedings. What should be alleged, liowever, in the 
 affidavit, as well as the other steps in the proceedings, 
 are matters of statutory regulation. Before the writ of 
 attachment is issued the plaintiff must execute an under- 
 taking to the defendant for the payment of all costs and 
 damages if the proceedings are wrongful and oppressive. 
 Attachment is also used to bring persons before the 
 court or into its custody where their presence is made 
 compulsory by the law. 
 
 § 686. How writ served. — When the writ is issued 
 and comes to the hands of the sheriff, it is his duty to 
 execute it at once by the seizure of the property of the 
 defendant sufficient in quantity to satisfy the plaintiff's 
 demand. If through his neglect the plaintiff's claim is 
 lost, he will be responsible for the damages, and he and 
 his sureties may be sued therefor on his official bond. If 
 he seizes property the defendant may reclaim it by giv- 
 ing a bond for its redelivery in case there is a judgment 
 against him, or that he will pay any judgment that may 
 be awarded against him in the action. If the sheriff is 
 in doubt as to the ownership of property which is claimed 
 by persons other than the defendant, he may, before 
 seizing it, demand that the plaintiff make and deliver to 
 him a bond to indemnify him against any judgment 
 which may be rendered against him. in case it should 
 turn out that the property seized did not belong to the 
 defendant. 
 
 § 687. Garnishment. — If, at the time of commence- 
 ing his action or afterwards, the plaintiff will make an 
 affidavit setting forth the causes for attachment, and the 
 additional fact that certain persons are indebted to the 
 defendant, a writ of garnishment will be issued and
 
 § 689] SPECIAL, PROCEEDINGS 435 
 
 served upon the persons named, after service of which 
 it is their duty to appear in court and make answer, and 
 if it appears that they owe the defendant money which 
 should be applied to plaintiff's claim, the court will order 
 it to be paid into court to satisfy plaintiff's judgment, 
 if he shall recover judgment. Matters of this nature are 
 regulated in considerable detail by statutes in the several 
 states. 
 
 § 688. Capias. — Another proceeding in aid of an ac- 
 tion is what is popularly called a capias. The use of the 
 capias is very much restricted in the United States, and 
 is now confined to cases of fraud or probable injury to 
 the plaintiff by reason of the removal of the defendant 
 to avoid service of process; and to cases where, after 
 judgment, the defendant fraudulently conceals money 
 or property which should be applied to its satisfaction. 
 The writ when issued requires the officer to take and keep 
 the defendant until he is discharged by order of court, or 
 until he procures his release by executing such bond as 
 the statute may require. 
 
 § 689. Arbitration. — Arbitration is a method of ad- 
 justing conflicting claims by the parties outside of court 
 by referring the matters in dispute to others. It is 
 usual where there are two parties for each one to select 
 a person to represent him. The persons so selected are 
 called arbitrators, and if they can not agree the matter 
 is left to a third person chosen by the arbitrators called 
 the umpire, whose decision is final, and the decision, 
 whether made by the arbitrators or the umpire, is called 
 the award. There are two kinds of arbitration, arbitra- 
 tion according to statute and common-law arbitration. A 
 statutory arbitration is where the parties pursue the 
 method prescribed by law and enter into bonds for the
 
 436 ELEMENTARY LAW [§ 690 
 
 performance of the award. Where such an award is 
 made and the party against whom it is given fails or 
 refuses to perform it, the matter is presented to court, 
 where the award is confirmed and judgment rendered 
 accordingly, unless the award is impeached for the mis- 
 conduct of the arbitrators or corruption. A common-law 
 arbitration is where the parties agree either verbally or 
 in writing to submit a matter to arbitration without fol- 
 lowing the forms prescribed by law. Awards made in 
 such cases may be made the basis of an action at law to 
 enforce its terms. 
 
 § 690. Accord and satisfaction. — An accord and sat- 
 isfaction is an agreement between a party injured and 
 the wrongdoer, whereby the wrongdoer agrees to do 
 something which the injured party accepts in satisfaction 
 of his claim. The satisfaction is generally different and 
 frequently less than what could be legally enforced. The 
 law encourages all efforts made by parties to settle con- 
 troversies out of court, and when they make such settle- 
 ments they are binding and will be enforced. To be effective 
 the satisfaction agreed upon must be performed. A 
 mere tender of performance if not accepted is not a 
 good satisfaction. 
 
 § 691. Partition. — Partition is a division of real 
 property amongst several persons who own it together. 
 Partition may be made by agreement of the parties, and 
 if they can not agree either of the parties can institute 
 legal proceedings, in which the division will be made as 
 the court may ajudge. Partition by agreement is a very 
 simple matter, the parties executing mutual releases or 
 conveyances to one another. They may also submit the 
 matter to arbitration instead of resorting to legal pro- 
 ceedings, and in such case the award of the arbitrators or
 
 § 691] SPECIAL. PROCEEDING.S 437 
 
 the umpire will fix the rights of the parties. Where 
 judicial proceedings are resorted to, the party instituting 
 the action files his petition in the proper court, setting out 
 by specific description the property sought to be divided, 
 giving the names of all the parties in interest with a 
 statement of the nature and extent of their respective 
 interests. A notice or summons is issued and served upon 
 all the defendants, and if any are not residents of the 
 state a notice by publication is given in the manner pre- 
 scribed by statute. Infants appear and defend either by 
 their legal guardian or by guardian ad litem, as the 
 statutes of the several states require. When the issues 
 are made up and the evidence is heard, the court makes 
 an interlocutory decree of partition fixing the shares of 
 the parties, and adjudicating all rights and equities which 
 may arise in the case. Where one of the parties has 
 expended money for the preservation of the property, 
 or where it is shown that one of the parties has received 
 money or property from the ancestor by way of advance- 
 ment of part of his portion which is to be charged 
 against his interest, in all such cases the court will deter- 
 mine the rights and equities of the parties and incorporate 
 its decisions in the interlocutory decree. This decree 
 adjudges that the division be made by commissioners, 
 naming them, and requires the commissioners to report 
 their doings to the court. When this report comes in 
 and it shows that a division has been made, any party in 
 interest has the right to except to the report. If after 
 hearing the report the court determines that the division 
 is unfair, a second order or decree is made requiring the 
 commissioners to make a new decision. When the report 
 is confirmed the court makes a final decree which estab- 
 lishes the rights of the parties to their shares in severalty. 
 If it appears that the property can not be divided without 
 injury to the parties, the court orders it to be sold, ap-
 
 438 ei.eme;ntary law [§ 691 
 
 pointing a commissioner for that purpose. Where it is 
 sold and the sale is reported and the report confirmed, 
 the final decree is made dividing the proceeds of the sale 
 amongst the parties according to their respective interests 
 and directing the commissioners to make a proper deed 
 to the purchaser.
 
 CHAPTER LV 
 
 CRIMINAL PROCEDURE 
 
 Sec. 
 
 
 Sec. 
 
 692. 
 
 Arrest. 
 
 704. 
 
 693. 
 
 Warrant for arrest. 
 
 
 694. 
 
 When warrant void and 
 
 705. 
 
 
 when valid. 
 
 706. 
 
 695. 
 
 Arrest by officer without 
 
 707. 
 
 
 warrant. 
 
 708. 
 
 696. 
 
 Arrest by private person. 
 
 709. 
 
 697. 
 
 Arrest upon hue and cry. 
 
 
 698. 
 
 What an officer may do in 
 
 710. 
 
 
 serving warrant and 
 
 711. 
 
 
 making arrest. 
 
 712. 
 
 699. 
 
 Extradition. 
 
 
 700. 
 
 Examinations — Bail. 
 
 713. 
 
 701. 
 
 Right to speedy trial — 
 
 
 
 Presence of accused in 
 
 714. 
 
 
 court. 
 
 715. 
 
 702. 
 
 Right of prisoner to have 
 counsel. 
 
 
 703. 
 
 Change of venue. 
 
 
 Application for continu- 
 ance. 
 
 Indictment — Information. 
 
 Pleas to indictment. 
 
 Arraignment. 
 
 Jury impaneling. 
 
 Opening statements of 
 counsel. 
 
 Examination of witnesses. 
 
 Rules of evidence. 
 
 Special rules of evidence 
 in criminal cases. 
 
 Final arguments of coun- 
 sel. 
 
 Conduct of jury — Verdict. 
 
 Motion for new trial — Ar- 
 rest of judgment — Exe- 
 cution. 
 
 § 692. Arrest. — The criminal law having been vio- 
 lated, the question arises, how shall the offender be 
 brought to punishment? And first, of arrest, which is 
 the taking into custody an alleged offender, in order that 
 he may be tried. The arrest may be made by an officer 
 or any citizen with a warrant, by an officer or citizen 
 without warrant, by any person upon hue and cry. 
 
 § 693. Warrant for arrest. — A warrant is a writ 
 directed to a sheriff, constable or officer, or other person 
 named, requiring him to apprehend and bring before the 
 magistrate or court, from which the writ issues, the per- 
 
 439
 
 440 ELEMENTARY LAW [§ 694 
 
 son named in the writ as the offender. The warrant, 
 when issued by a magistrate, is based upon an oath made 
 by some citizen charging the person named therein with 
 the violation of some criminal law. When issued by a 
 court, it is based upon an indictment found by the grand 
 jury, or upon an information filed by the public pros- 
 ecutor. It is the duty of the officer, or person charged 
 with the duty of serving the warrant to make the arrest 
 without delay, and this is done by notifying the alleged 
 offender named in the warrant that he is arrested. It is 
 proper and usual to lay hands on the accused. A mere 
 touching with the fingers is enough, and even this may be 
 waived by the defendant if he submits to arrest. If a 
 question is raised as to the authority of the officer or 
 person making the arrest, it is customary for him to 
 show the warrant, though this is not necessary, if he state 
 the substance of the writ. If the offender knows the 
 person to be an officer, no further notice is required, and 
 so if the officer exhibits his badge of office. 
 
 § 694. When warrant void and when valid. — A war- 
 rant issued by a magistrate or court which has no juris- 
 diction of the offense charged gives no authority to the 
 officer or person named to make the arrest. It must ap- 
 pear to be based upon some formal accusation made 
 before a competent magistrate or tribunal, and to charge 
 the person named therein with the commission of a 
 specific offense; and it must bear the seal or signature of 
 the court or magistrate who issued it. Mere clerical or 
 formal errors are immaterial and will not destroy the 
 validity of the writ. If an officer makes an arrest upon 
 a void and illegal writ, he does so at his peril, and if the 
 person apprehended is innocent, the officer may be liable 
 in damages for false imprisonment.
 
 § 696] CRIMINAL, PROCEDURE 441 
 
 § 695. Arrest by officer without warrant. — An offi- 
 cer is in duty bound to arrest for felony without warrant 
 where there is reasonable ground for suspecting the party 
 to be guilty. If a crime or misdemeanor is committed in 
 his presence, he may arrest the offender. If he is in- 
 formed by others that a crime has been committed he 
 must act with discretion and prudence and upon reason- 
 able grounds. It is the safer course always, wlien time 
 will permit, to delay making arrest upon information 
 without warrant and require those making the complaint 
 or charge to make oath to it before a proper magistrate. 
 The question in all such cases for the officer is, has he 
 good grounds to believe that a crime has been or is about 
 to be committed? 
 
 The better view seems to be that an officer can not 
 arrest a person without a warrant for minor offenses, 
 except where committed in his presence. Some courts 
 require also that it must amount to a breach of the 
 peace. 
 
 § 696. Arrest by private person. — Private persons 
 who are called upon by a proper officer to assist in mak- 
 ing an arrest for felony must obey, and it is an offense 
 against the law to refuse. In cases of felonies, if a 
 private person without warrant has reasonable ground to 
 suspect another of being the guilty party, he may, if 
 acting without malice and in good faith, make the arrest, 
 and for doing so he is not liable civilly or criminally if 
 the arrested person proves to be innocent. To protect a 
 private person who makes an arrest for felony without 
 warrant, it is necessary that a felony should have been 
 committed, and that the person had good ground to 
 believe that the person arrested was tlie guilty party. An 
 officer is protected in such case if he have reasonable
 
 442 EI^ICMUNTAKV LAW [§ 697 
 
 ground to believe that the party is guilty, whether a 
 felony has been committed or not. 
 
 § 697. Arrest upon hue and cry. — If a crime has 
 been committed and an officer or people are in pursuit 
 of a suspected offender, any citizen acting in good faith 
 may apprehend the person pursued and keep him in 
 custody until he has opportunity to deliver him to the 
 officers of the law. 
 
 § 698. What an officer may do in serving v^^arrant 
 and making arrest. — An officer with a warrant for the 
 arrest of a person may pursue him to his home, and if 
 necessary he may break down the doors. A private per- 
 son without a warrant, who has good reasons for believ- 
 ing that one has committed a felony, may use the same 
 force in making the arrest, though if the party arrested 
 prove to be innocent an action for damages would lie 
 against the persons so breaking open doors without war- 
 rant. Mere suspicion of guilt will not justify such a 
 course on the part of a private person. If an offender 
 secretes himself in the house of another, the right to 
 arrest him and to use force is the same as if he were in 
 his own house. Upon proper affidavits magistrates issue 
 search-warrants for stolen goods, and an officer having 
 such a warrant may break open doors, trunks, etc., in 
 prosecuting his search. Before resorting to such violence, 
 however, he should make a demand for peaceful entrance 
 and for the keys of trunks or chests in which the stolen 
 goods are suspected to be. 
 
 § 699. Extradition. — Where one who has commit- 
 ted a crime in one state flees to another, his arrest may 
 be accomplished by means of a writ of extradition. This 
 writ is issued by authority of the state where the fugitive
 
 § 700] CRIMINAL PROCEDURE 443 
 
 may be in hiding, upon a formal application of the 
 governor of the state in which the crime was committed. 
 The extradition of fugitives from justice is in obedience 
 to a requirement of the Constitution of the United 
 States, which provides that "a. person charged in any 
 state with treason, felony, or other crime, who shall flee 
 from justice, and be found in another state, shall, on 
 demand of the executive authority of the state from 
 which he fled, be delivered up, to be removed to the 
 state having jurisdiction of the crime." This provision 
 includes every crime punishable in the state making the 
 requisition. The person who takes custody of the fugi- 
 tive for the purpose of bringing him to the state from 
 which he fled is not necessarily an officer. He is the 
 agent of the state making the demand and is named in 
 the requisition. When he has custody of the fugitive 
 it is his duty to transport him without delay to the state 
 and county where the crime was committed and to 
 deliver him over to the proper officer, to be dealt with 
 according to law. 
 
 Fugitives from justice who seek refuge in a foreign 
 country are delivered up according to the stipulations of 
 the treaties made upon that subject. The crimes for 
 which such fugitives will be surrendered to the country 
 claiming them are enumerated in the treaties. No 
 civilized country, however, will deliver up a fugitive who 
 is charged with a political offense. * 
 
 § 700. Examinations, bail, etc. — The accused being 
 in custody and before the officer or court having juris- 
 diction of the case, he is entitled to have an examination 
 and trial in due course of law. If the offense is trivial, 
 the magistrate, mayor, justice of the peace, or police 
 judge, proceeds promptly to hear the case and assess the 
 penalty. In such cases the judgment is final unless by
 
 444 ELEMEINTARY LAW [§ 701 
 
 Statute an appeal to a higher court is allowed. If the 
 offense is of a higher grade and one of which the 
 magistrate who issued the writ has not jurisdiction to try, 
 he proceeds in a summary way to hear the evidence, and 
 if a case of probable guilt is made out, he requires the 
 accused to give bail, if the offense be bailable, for his 
 appearance before the court having final jurisdiction, to 
 answer the charge; and if bail is not given, the accused 
 is imprisoned until the charge against him is disposed of 
 by that court. If on the preliminary examination the 
 magistrate should decide that the evidence did not estab- 
 lish a case of probable guilt, the accused would be dis- 
 charged. Such a discharge, not being a final judgment, 
 would be no bar to subsequent arrests and trials for the 
 same offense. 
 
 § 701. Right to speedy trial — Presence of accused 
 in court. — Where bail is given, or the accused is im- 
 prisoned by the examining magistrate for want of bail, 
 he is entitled to have the charge against him investigated 
 at the next term of the court having jurisdiction. If no 
 indictment is found against him and no formal charge 
 made in that court, he will be discharged. When the in- 
 dictment is found by the grand jury, or an information is 
 filed by the prosecutor, the defendant is entitled to be 
 arraigned and have the charge read to him in open court. 
 He can waive this right and appear and plead by attor- 
 ney if he pleases. When a prisoner is in custody, he has 
 a right to be present in court at every stage of the pro- 
 ceedings. If he is on bail and voluntarily absents himself 
 during a part of the proceedings, such absence will not 
 affect the validity of his trial and conviction. 
 
 § 702. Right of prisoner to have counsel. — The 
 right of the prisoner to be represented by counsel is guar-
 
 § 704] CRIMINAL trocedure; 445 
 
 anteed by the Constitution of the United States and by 
 the constitutions of most of the states. If he is not able, 
 or refuses to employ counsel, the court will assign some 
 attorney to appear for the prisoner and conduct his 
 defense. An attorney who is so designated by the court 
 is bound to perform the duty assigned him. In some 
 jurisdictions the attorney receives no compensation, in 
 others the court makes him an allowance which is paid 
 out of the public treasury, as other court expenses are 
 paid. 
 
 § 703. Change of venue. — The defendant has a 
 right to be tried by an impartial court and an unprejudiced 
 jury. If it is shown to the satisfaction of the court by 
 proper affidavits that the local prejudice in the place where 
 the prisoner is arraigned for trial is so great that it would 
 be impossible to give him a fair trial, the place of trial 
 will be changed to another jurisdiction. In some states 
 the judge has no discretion, but must award the change 
 when applied for in the form required by law. In other 
 states the judge may allow or refuse the application at 
 his discretion. The same rules apply where the prisoner 
 impeaches the partiality of the judge and demands a trial 
 before an unprejudiced judge. 
 
 § 704. Application for continuance. — If the prose- 
 cutor or defendant is not ready to proceed with the trial 
 on account of the sickness or absence of important wit- 
 nesses, the court will grant a continuance. A mere state- 
 ment of the prosecutor that he is not prepared to proceed 
 is usually enough to procure a continuance. A stricter 
 rule is applied to the defendant who in order to procure 
 a continuance must show to the court by affidavits that a 
 material witness or witnesses are absent, that it was 
 impossible by the exercise of reasonable diligence to pro-
 
 446 Ulementarv law [§ 705 
 
 cure their attendance, that he has reasonable grounds for 
 beheving that their attendance may be procured if time 
 is given, that the facts he expects to prove by the testi- 
 mony of the absent witness can not be estabHshed so well 
 by any other available witness. In extreme cases con- 
 tinuances will be granted on account of the sickness of 
 the defendant or his counsel or where on account of 
 some temporai-y local excitement it would be prejudicial 
 to the defendant to be forced to trial. An improper 
 refusal to grant a continuance is an error which will 
 reverse a case in the appellate court if the defendant 
 should be tried and convicted. Where proper affidavits 
 are filed, a continuance may be avoided by the admission 
 of the prosecutor that the absent witness if present would 
 testify to the facts set forth in the affidavits. 
 
 § 705. Indictment — Information. — The indictment is 
 a written accusation charging the persons named therein 
 with the commission of a crime, presented on oath by 
 the grand jury. An information is a similar charge not 
 presented by the grand jury but signed by the prosecuting 
 officer. In substance they are the same. Each must 
 charge the defendant named with a specific offense, giv- 
 ing time, place, person and every circumstance so as to 
 inform the accused of the exact nature of the charge he 
 is to answer. In the caption the state and county in 
 which the offense was committed and the name of the 
 court should appear. The indictment must be signed by 
 the prosecuting attorney and indorsed, "A true bill," by 
 the foreman of the grand jury. If a single count in an 
 indictment charges two distinct crimes, it will be bad for 
 duplicity, as where the same count contains a charge of 
 murder and robbery. Where an indictment in describing 
 the offense follows substantially the language of the 
 statute, it is sufficient.
 
 § 708] CRIMINAL PROCIJDURE 447 
 
 § 706. Pleas to indictment. — Before entering- his 
 plea to the charge against him, the defendant may move 
 to quash the indictment or information for some defect 
 apparent upon the face of it, as if it does not charge the 
 offense properly or is not signed by the prosecutor or 
 indorsed by the foreman of the grand jury, or if the 
 names of the principal witnesses for the prosecution do 
 not appear upon it, or if the date of the offense as 
 charged is subsequent to the finding of the indictment or 
 the filing of the information, or if the date named is 
 beyond the period prescribed by the statute of limitations. 
 What are and what are not sufficient grounds for a 
 motion to quash is ordinarily determined by the statutes 
 of the states. The motion to quash should precede the 
 plea, though the court will allow a plea already entered 
 to be withdrawn and give the defendant leave to move 
 to quash the indictment or information. 
 
 § 707. Arraignment. — The arraignment consists of 
 calling the prisoner to the bar by name, reading the indict- 
 ment to him, and asking him whether he is guilty or not 
 guilty of the offense charged. When thus arraigned he 
 may demur to the indictment, plead either to the jurisdic- 
 tion, in abatement, a former conviction or acquittal of 
 the same offense, a pardon, or not guilty. If he stands 
 mute and refuses to plead, the court will order a plea of 
 not guilty to be entered. If the defendant pleads guilty, 
 nothing remains for the court to do but to pass sentence. 
 The plea of guilty can be made only by the defendant in 
 person, and in open court. The plea of not guilty puts 
 in issue all the material averments in the indictment and 
 information. 
 
 § 708. Jury impaneling.— The case being put at 
 'ssue by the plea of not guilty, the impaneling of the
 
 448 ELEMENTARY LAW [§ 709 
 
 jury comes next in order. Most of the states have special 
 statutes directing how jurors are to be selected, and how 
 and for what causes they may be challenged. There are 
 three kinds of challenges, namely : challenge to the array, 
 which is an objection to the whole body of jurors returned 
 by the sheriff for some irregularity or misconduct on the 
 part of the sheriff; the peremptory challenge, which is an 
 objection to an individual juror without stating any 
 reason, the number of such challenges being limited by 
 law; the challenge for cause, which is an objection to an 
 individual juror on account of bias, partiality or the 
 existence in his mind of a prejudice against the defendant, 
 or of a preconceived opinion of his guilt, there being no 
 limit to the number of challenges of this kind. The jury 
 is not complete until twelve men are selected. When all 
 challenges are exhausted or waived and the panel is full, 
 the jurors are sworn in open court to try the case. 
 
 § 709. Opening statements of counsel. — When the 
 jury are impaneled and sworn, the prosecuting attorney 
 opens the case by stating the substance of the evidence 
 he proposes to submit to the jury. This statement should 
 be full and candid, so as to notify counsel for defense of 
 the case they are expected to meet. Then follows the 
 statement for the defense, or, if counsel prefer, the state- 
 ment for the defense is postponed until the evidence for 
 the prosecution has been put in. The order of these 
 opening addresses is a matter within the discretion of 
 the court, except in those states where the statutes pre- 
 scribe it. 
 
 § 710. Examination of witnesses. — The witnesses 
 for the prosecution are then called and examined. It is 
 usual for one counsel only to conduct the direct examina- 
 tion, and one to conduct the cross-examination of each
 
 §711] CRIMINAL PROCEDURE 449 
 
 witness. This is a matter of usage, however, regulated 
 by the practice of each court. Upon request the presiding 
 judge may allow other counsel in the case to interrogate 
 the witness. Arbitrary rules are not enforced, the object 
 being to get all the material facts before the jury, and 
 the judge is allowed a large discretion in determining 
 the order in which the evidence is to be introduced. It 
 sometimes happens that important facts are within the 
 knowledge of a witness who has been examined and dis- 
 charged, and which was not elicited upon his examination. 
 Where this appears to be the case the court may allow 
 such witness to be recalled by the prosecution or defense, 
 even after it has been announced that the evidence is 
 all in. 
 
 §711. Rules of evidence. — The general rules of evi- 
 dence as to its competency and relevancy are the same in 
 criminal as in civil cases ; as to the weight and effect of 
 the evidence the rules are different. A bare preponder- 
 ance of evidence is enough to establish the plaintiff's right 
 to recover in a civil case ; in a criminal case every material 
 allegation in the indictment must be proved beyond a 
 reasonable doubt, and every fact necessary to establish 
 guilt must be proved in like manner. In civil cases where 
 one side or the other has produced evidence which prima 
 facie establishes a given fact, the burden of proof shifts 
 to the party against whom the prima facie case is made; 
 in criminal cases the burden never shifts, the presumption 
 of the prisoner's innocence follows and shields him 
 throughout the case until the measure of proof establishes 
 his guilt beyond a reasonable doubt. In some states even 
 the presumption of the sanity of the accused does not 
 require him to prove his insanity when that is urged as 
 a defense. It is incumbent on the state to establish his 
 sanity beyond a reasonable doubt, though the general rule 
 29 — Elem. Law.
 
 450 ELEMENTARY LAW [§ ^1- 
 
 in most of the states puts the l)urden of estabhshing the 
 defense of insanity upon the defendant. So where the 
 defense of self-defense is urged in behalf of one on trial 
 for homicide or assault and battery, the burden of proof 
 is upon the state to negative it, though in a few states 
 a contrary rule prevails. The same may be said of the 
 presumption of guilt arising against one accused of 
 larceny from the possession of goods recently stolen. 
 Where the state undertakes to establish the guilt of the 
 accused by circumstantial evidence consisting of a chain 
 of facts, every fact essential to the continuity of the 
 chain must be established beyond a reasonable doubt. 
 The rule in such cases is that the facts proved must be 
 absolutely inconsistent with the theory of the innocence 
 of the accused. 
 
 § 712. Special rules of evidence in criminal cases. — 
 There are some other special rules of criminal evidence 
 which should be noted. The dying declarations of the 
 victim of homicide, if made when death is imminent and 
 expected by the victim, are competent evidence to prove 
 the circumstances attending the transaction, the name of 
 the slayer, etc. The voluntary confessions of the accused 
 are evidence against him ; when made in open court they 
 are called judicial confessions, and when made elsewhere 
 they are called extra-judicial confessions. When an 
 accomplice turns state's evidence and testifies against his 
 confederates, his evidence is received, but is not enough 
 to establish the guilt of the accused unless it is corrob- 
 orated by other witnesses or other facts in evidence. 
 When two accomplices testify, the evidence of one can 
 not be considered as a corroboration of the evidence of 
 the other. If the accused is not content with the pre- 
 sumption of innocence which the law allows in liis favor, 
 but desires to strengthen it, he may do so by introducing
 
 § 714] CRIMINAL, PROCEDURE 451 
 
 proof of his good character. When he does so, however, 
 the state may meet it by contrary proof. 
 
 § 713. Final arguments of counsel. — When the evi- 
 dence is all in, counsel address the jury. They are re- 
 quired to confine themselves to a discussion of questions 
 of fact, for the court is to charge the jury as to the law 
 of the case. The jury are bound by their oaths to find 
 the facts according to the evidence as given by the wit- 
 nesses and the law as given to them by the court. In 
 some states, however, the law makes the jury the judges 
 of the law as well as the facts, and where this is the 
 case, counsel have a larger liberty and may argue to the 
 jury that the law is different from that which is given to 
 them by the court. The cases are rare, however, in 
 which counsel resort to this practice. It is common 
 practice in the English courts and in the federal courts 
 for the presiding judge to comment upon and sum up 
 the evidence in his charge, but this is seldom done in 
 the state courts, where the statutes generally require the 
 judge, when so requested, to submit his instructions to 
 the jury in writing. 
 
 § 714. Conduct of jury — Verdict. — The rules regu- 
 lating the conduct of the jury after they retire to 
 deliberate upon their verdict and as to the manner of 
 signing and returning the verdict into court are the same 
 in criminal as in civil cases. The defendant has a right 
 to demand that the jury be polled, which is done by call- 
 ing each juror by name and asking him if the verdict 
 signed by the foreman is his verdict. If any one of the 
 twelve answers in the negative the whole jury are sent 
 to their room for further deliberation. When it is re- 
 turned into court the verdict is recorded by the clerk.
 
 452 ELEMENTARY LAW [§ 715 
 
 § 715. Motion ior new trial — Arrest of judgment — 
 Execution. — After verdict the defendant may move 
 for a new trial : ( 1 ) For newly-discovered evidence, 
 when it is made to appear that the defendant by the 
 exercise of due diligence could not have produced it at 
 the trial, that the newly-discovered evidence is material 
 and not merely cumulative, that is, tending to make fur- 
 ther proof of a fact upon which some evidence was pro- 
 duced at the trial; (2) irregularity in summoning the 
 jury; (3) misconduct of jurors; (4) tampering with 
 jurors; (5) bias or hostility of jurors, which was un- 
 known to defendant when they were accepted and sworn ; 
 (6) that the verdict was contrary 'to evidence; (7) that 
 the verdict was contrary to law. If the motion for a new 
 trial is denied, the defendant may move in arrest of judg- 
 ment, and to sustain this motion he must show that there 
 are defects in the record of the proceedings which are not 
 cured by the verdict. If these motions are denied sen- 
 tence is pronounced and the judgment of the court is 
 executed, unless upon appeal or writ of error a higher 
 court reverses the judgment.
 
 INDEX 
 
 [References are to Sections] 
 
 A 
 
 ABATEMENT, 
 
 pleading in, 662. 
 
 ABDUCTION, 270. 
 
 ABORTION, 264. 
 
 ABUSE OF PROCESS, 76. 
 
 ACCEPTANCE, 
 
 See Offeb and Acceptance. 
 
 ACCEPTANCE OF BILL OF EXCHANGE, 477. 
 
 ACCESSORIES, 257. 
 
 ACCOMPLICE, 
 
 evidence of, 712. 
 
 ACCORD AND SATISFACTION, 
 defined, 690 
 
 ADEQUACY OF CONSIDERATION, 451. 
 
 ADMINISTRATION OF JUSTICE, 
 definition, 15. 
 
 ADMINISTRATIVE LAW, 
 in general, 611-624. 
 
 ADMINISTRATOR, 
 
 how appointed, 421. 
 
 rights and duties of, 421, 
 
 de bonis non, 421. 
 
 sales of land by, 421, 422. 
 
 with the will annexed, 422. 
 
 promise under statute of frauds, 463. 
 
 ADMIRALTY. 
 
 origin and history, 652. 
 jurisdiction, 653. 
 procedure, 654. 
 
 453
 
 454 INDEX 
 
 [References are to Sections] 
 
 ADMISSIONS, 
 
 when evidence, 673. 
 
 ADULTERY, 
 
 defined, 265. 
 
 as ground for divorce, 561. 
 
 ADVANCEMENT, 691. 
 
 ADVERSE POSSESSION, 397. 
 
 deeds of lands, so held, 407. 
 
 ADVOWSON, 322. 
 
 AFFIDAVITS, 
 
 when privileged, 97. 
 
 AFFRAY, 272. 
 
 AGENT, 
 
 See Principal and Agent. 
 
 promissory notes of, 483. 
 
 contracts by, 526. 
 
 who may be, 526. 
 
 can not assume incompatible duties, 526. 
 
 how appointed, 526. 
 
 generally can not delegate authority, 526, 5301 
 
 authority of, how ascertained, 527, 528. 
 
 private instructions to, by principal, 528. 
 
 ambiguous authority, 528. 
 
 acts in excess of authority, 528. 
 
 declarations of, as evidence, 528. 
 
 liability of to principal, 530. 
 
 frauds of, 530. 
 
 when authority ceases, 531. 
 
 AIDING AND COUNSELING IN CRIMES, 249. 
 
 AIDS UNDER FEUDAL SYSTEM, 339, 351. 
 
 ALIENS, 
 
 contracts of, 442. 
 
 ALLODIAL ESTATES, 334, 360. 
 
 ALLUVIAL DEPOSITS, 316.
 
 INDEX 455 
 
 [References are to Sections] 
 
 AMBASSADORS, 
 
 privilege from arrest, 69, 70. 
 crimes of, 626. 
 
 AMPHICTYONIC COUNCIL, 625. 
 
 ANCIENT TENURES, 
 
 in general, 344-357. 
 
 ANIMALS, 
 
 injury to, 223. 
 
 trespass on lands, 224. 
 
 duty of owner at common law, 225. 
 
 duty of owner in United States, 226. 
 
 remedies for trespasses, 227. 
 
 injuries by, when not trespassing on land, 228. 
 
 vicious and dangerous, 228. 
 
 owner's knowledge of danger, 229. 
 
 ANTENUPTIAL AGREEMENTS, 382. 
 
 APPEAL, 68L 
 
 APPORTIONMENT OF RENT, 375. 
 
 APPRENTICES, 534. 
 
 APPURTENANCES, 
 defined, 320. 
 
 ARBITRATION, 689. 
 
 ARGUMENTS OF COUNSEL, 
 privilege of, 97. 
 in civil cases, 676. 
 in criminal cases, 713. 
 
 ARMS, 
 
 right to bear, 596. 
 
 ARRAIGNMENT, 707 
 
 ARREST, 
 
 for crime, 63, 692. 
 
 by officer without warrant, 65, 695. 
 
 by private person, 65, 696. 
 
 what ofiicer may do in serving warrant, 66, 698. 
 
 privilege from, 69. 
 
 definition of civil arrest, 69.
 
 456 INDEX 
 
 [References are to Sections'^ 
 
 ARREST— Continued, 
 warrant for, 693. 
 upon hue and cry, 697. 
 
 ARREST OF JUDGMENT, 679. 
 
 ARSON, 273. 
 
 ASSAULT, 
 
 defined, 54, 274. 
 
 ability and intent to injure, 55. 
 
 ASSAULT AND BATTERY, 
 See Battery. 
 in general, 54-61, 275. 
 justification for, 59, 277. 
 
 ASSAULT WITH INTENT, 276. 
 
 ASSIGNMENT OP DOWER, 383. 
 
 ASSIGNOR OF NEGOTIABLE INSTRUMENT, 481. 
 
 ATTACHMENT, 685, 686. 
 
 ATTEMPTS TO COMMIT CRIME, 248. 
 
 ATTORNEY, 
 
 fraud of, 109. 
 contingent fees of, 279. 
 at law and in fact, 526. 
 in fact, deed by, 532. 
 
 AUCTIONEER, 526. 
 
 B 
 
 BAIL, 700. 
 
 BAILMENT, 
 
 for benefit of bailor, bailee or both, 501, 
 
 degree of care required, 501. 
 
 common carrier, 501. 
 
 Innkeeper, 501. 
 
 mechanic or artisan, 501. 
 
 warehouseman, 501. 
 
 pawnbroker, 501. 
 
 BARRATRY, 279.
 
 INDEX 457 
 
 [References are to Sections] 
 BASE FEE, 378. 
 BASE TENURE, 348. 
 
 BATTERY, 
 
 defined, 56, 275. 
 intent of wrongdoer, 57. 
 consent of injured, 58. 
 justification for, 59, 277. 
 self-defense, 60. 
 remedies for, 61. 
 
 BELLIGERENTS, 
 
 rights and dulies of, 628. 
 
 BEQUEST, 
 
 title by, 417. 
 
 BESTIALITY, 27L 
 
 BIGAMY, 280. 
 
 BILL OP ATTAINDER, 
 defined, 598. 
 
 BILL OF EXCHANGE, 
 defined, 471. 
 foreign, 474. 
 inland, 474. 
 parties to, 475. 
 acceptance of, 477. 
 signatures, 479. 
 
 BILL OF LADING, 
 
 negotiability, 487. 
 
 BILLS AND NOTES, 
 
 See B11.L OF Exchange; Bill of Lading; Negotiabik Instru- 
 ments. 
 
 BODIES OF DEAD, 418 
 
 BOUNDARY LINES, 
 
 along highways, 213.* 
 along streams, 315. 
 in general, 318. 
 
 BOYCOTTING, 
 
 legality, 237.
 
 458 INDEX 
 
 [References are to Sections] 
 
 BREACH OF CONTRACT, 
 
 tort distinguished from, 48. 
 remedy, 48, 460. 
 
 BRIBERY, 281. 
 
 BROKER, 526. 
 
 BUSINESS RELATIONS, 
 
 protection by law, 230. 
 
 Interference with, 233-240. 
 
 Intentional injuries to as constituting a tort, 235. 
 
 competition as justification for injuries to employer, 236. 
 
 legality of boycotting, 237. 
 
 combinations and conspiracies, 238. 
 
 remedy for unlawful interference, 240. 
 
 BURDEN OF PROOF, 675. 
 
 BURIAL RIGHTS, 418. 
 
 BURGLARY, 282. 
 
 C 
 
 CAPACITY, 
 
 to commit crime, 243. 
 parties to contract, 441-449. 
 
 CAPIAS, 688. 
 
 CAPITAL PUNISHMENT, 
 right to inflict, 9. 
 
 CARELESSNESS, 
 criminal, 251. 
 
 CERTAINTY, 
 
 as element in settling dispute, 39. 
 
 necessary element in administration of justice, 40. 
 
 when more important than justice, 41. 
 
 CERTIORARI, 624. 
 
 CHALLENGE TO JURY, 708. 
 
 CHAMPERTY, 279. 
 
 CHARACTER, 
 
 evidence of in criminal cases, 711.
 
 INDEX 459 
 
 [References are to Sections] 
 
 CHARTER, 
 
 corporate, 517. 
 
 repeal of corporate charter, 521. 
 
 CHEATING BY FALSE PRETENSES, 286. 
 
 CHECKS, 
 
 as bills of exchange, 487. 
 
 CHILD, 
 
 See Parent and Child. 
 
 CICERO, 
 
 definition of law, 1. 
 
 CIRCUIT COURTS OF APPEALS, 
 jurisdiction, 638. 
 
 CIRCUIT COURTS OF THE UNITED STATES, 
 merged with district courts, 639. 
 
 CITIZENSHIP, 
 
 of corporations, 121. 
 
 defined, 592. 
 
 two kinds in United States, 592. 
 
 rights of, how guarded, 592. 
 
 how acquired, 592. 
 
 jurisdiction of United States courts, when dependent on, 634. 
 
 CIVIL CODE IN LOUISIANA, 18. 
 
 CIVIL PROCEDURE, 
 civil actions, 656. 
 officers of court, 656. 
 actions, how commenced, 657. 
 parties to actions, 657. 
 process, 658. 
 
 service and return of process, 659. 
 matters of defense, 660. 
 objections to jurisdiction, 661. 
 answers or pleas in abatement, 662. 
 issues of fact and of law, 663. 
 jury, 664. 
 trial, 665. 
 evidence, 666. 
 
 functions of court and jury, 667. 
 judicial notice, 668.
 
 460 INDEX 
 
 [References arc to Sections] 
 
 CIVIL PROCEDURE— Continued, 
 presumptions, 668. 
 written and oral evidence, 669. 
 attendance of witnesses, 670. 
 competency of witnesses, 671. 
 hearsay evidence, 672. 
 exceptions to rule excluding hearsay, 673. 
 examination of witnesses, 674. 
 burden of proof, 675. 
 arguments and instructions, 676. 
 deliberations of jury, 677. 
 verdict, 677. 
 
 motion to set aside verdict, 678. 
 motion for new trial, 678. 
 motion in arrest of judgment, 679. 
 forms of judgment, 680. 
 appeals and writs of error, 681. 
 execution, 682. 
 
 CLERGYMEN, 
 
 frauds of, 109. 
 
 CLERK OF COURT, 656. 
 
 CODICIL, 403. 
 
 COMBINATIONS, 
 legality, 238. 
 
 COMMERCE, 
 
 See Interstate Commerce. 
 
 COMMISSION MERCHANT, 526. 
 
 COMMON, 
 
 estates in, 394. 
 
 COMMON CARRIER, 
 
 duty as to care of goods, 501. 
 who is a common carrier, 501, 502. 
 duty as to passengers, 502. 
 not insurers as to passengers, 502. 
 may make and enforce rules, 502. 
 act of God, 502. 
 
 COMMON LAW, 
 defined, 18. 
 where found, 18.
 
 INDEX 461 
 
 [References are to Sections] 
 
 COMMON LAW— Continued, 
 sources of, 20. 
 growth of, 21. 
 
 law merchant, a part of, 21. 
 of United States, 22. 
 yields to statutes, 28. 
 
 COMMON RECOVERIES, 380. 
 
 COMMON, 
 
 right of, 324. 
 
 COMPENSATORY DAMAGES, 
 application of remedy, 15. 
 
 COMPENSATORY PROCEEDINGS, 
 defined, 15. 
 
 COMPETITION, 
 
 as justification for injuries to competitor, 236. 
 legality of boycotting, 237. 
 
 COMPOUNDING CRIMES, 247. 
 
 CONDITIONAL FEE, 379. 
 
 CONDITION, 
 
 estates upon, 384. 
 implied, 385. 
 expressed, 386. 
 
 CONDITIONS, 
 
 when equity will relieve against forfeiture for breach of, 387. 
 
 CONDITIONS PRECEDENT, 387. 
 
 CONDITIONS SUBSEQUENT, 387. 
 
 CONDUCT, 
 
 necessity of basis of regulating, 37. 
 requisites of basis of regulating, 38, 39. 
 
 CONFESSIONS, 712. 
 
 CONFIDENTIAL RELATIONS, 
 
 presumption as to undue influence in contracts, 438. 
 
 CONFLICT OF LAWS, 
 
 constitutional provisions, 610.
 
 462 INDEX 
 
 [References are to Sections] 
 
 CONFUSION, 
 
 title by, 417. 
 
 CONSENT, 
 
 to taking life, 50. 
 
 to assault and battery, 58. 
 
 to abortion, no defense, 264. 
 
 in rape, 268. 
 
 meeting of minds in contracts, 436-438. 
 
 CONSIDERATION, 
 defined, 450. 
 good and valuable, 450. 
 moral obligation, 450. 
 adequacy, 451. 
 prior obligation, 452. 
 part payment as, 452. 
 mutual releases by creditors, 453. 
 disputed claims, 454. 
 impossible, 455. 
 legal and illegal, 455, 458. 
 executed and executory, 456. 
 past, 457. 
 
 failure and want of, 458. 
 of promissory notes, 485. 
 
 CONSPIRACY, 
 
 in competition, legality, 238. 
 to prevent labor, 239. 
 civil remedies for, 240. 
 criminal, 287, 288. 
 
 CONSTITUTION OF UNITED STATES, 
 power of supreme court, 587. 
 
 CONSTITUTIONAL LAW, 
 in general, 585-590. 
 
 definition, 586. _-g 
 
 American doctrine contrasted with European practice, 588. 
 
 divisions of subject, 589. 
 separation of powers, 590. 
 
 CONSTITUTIONAL RIGHTS, 
 fundamental rights, 591. 
 
 CONSTITUTIONS, 
 
 fundamental law, 1.
 
 INDEX 463 
 
 [References are to Sections] 
 
 CONSTITUTIONS— Continued. 
 
 what they are, how made and amended, 24. 
 
 definition, 586. 
 
 jurisdiction of cases involving, 637. 
 
 CONSTRUCTION, 
 
 function of construction, 2. 
 effect of contemporaneous, 28. 
 of criminal statutes, 244. 
 
 CONTEMPT, 683, 684. 
 
 methods enforcing judgments, 15. 
 
 CONTINGENT FEES OF ATTORNEYS, 279. 
 CONTINGENT REMAINDER, 388. 
 CONTINUANCE IN CRIMINAL CASES, 704. 
 
 CONTRACTS. 
 
 contract and status, 424. 
 growth of right to contract, 424. 
 definition, 425. 
 executed and executory, 426. 
 written, 427. 
 parol, 428. 
 express, 429. 
 implied contract, 430. 
 quasi contract, 431. 
 of record, 432. 
 time of contract, 434. 
 meeting of minds, 436 
 duress, 438. 
 
 illegal in whole or part, 439. 
 impossible, 439. 
 void and voidable, 439. 
 , interpretation of, 440. 
 capacity of parties, 441. 
 parties, 442. 
 of state, 442. 
 of insane, 442, 447. 
 of aliens, 442. 
 of infants, 443-445. 
 for necessaries by infant, 444. 
 executed, of infant, 444. 
 ratification of, by infant, 445.
 
 464 INDEX 
 
 [References are to Sections} 
 
 CONTRACTS— Continued. 
 
 disaffirmance of, by infant, 445. 
 
 fraud of infants, 446. 
 
 of guardians, 447. 
 
 drunkenness as affecting contracts, 448. 
 
 of married woman, 449. 
 
 consideration, 450-458. 
 
 discharge, 459. 
 
 remedy for breach, 460. 
 
 statute of frauds, 461-470, 499. 
 
 bills of exchange, 471-479. 
 
 promissory notes, 471-486. 
 
 bills of lading, 487. 
 
 insurance, 488-495. 
 
 of sale and exchange, 496-498, 500. 
 
 warranty, 497. 
 
 specific performance of, when not enforced, 497. 
 
 transfer of title, 498. 
 
 delivery, 500. 
 
 bailment, 501. 
 
 of common carriers, 502. 
 
 of partnership, 503-506, 508-512. 
 
 of corporations, 518. 
 
 by agents, 526. 
 
 by ship's husband, 527. 
 
 by ship's master, 527. 
 
 authority of agent, 527, 528. 
 
 acts in excess of authority, 528. 
 
 private instructions to agent, 528. 
 
 ambiguous authority of agent, 52a. 
 
 declarations of agents, 528. 
 
 when authority ceases, 530. 
 
 CONTRACTUAL DUTIES, 
 
 damages for interference, 233. 
 
 CONVENTIONAL LAW OF NATIONS, 626. 
 
 COPYRIGHTS, 188. 
 
 CORPORATIONS, 
 
 definition, 513. 
 
 public, 513. 
 
 private, 513. 
 
 quasi corporations, 513.
 
 INDEX 465 
 
 \ References are to Sections] 
 
 CORPORATIONS— Continued. 
 
 joint stock companies, 513. 
 
 distinguished from partnership, 514. 
 
 powers of, 515. 
 
 organization of, 516. 
 
 persons, 516. 
 
 doing business in other states, 516. 
 
 charter of, 517. 
 
 contracts of, 518. 
 
 rights of stockholders, 519. 
 
 dissolution of, 520. 
 
 vested rights of, 521. 
 
 deeds by, 522. 
 
 frauds of, 52G. 
 
 CORPOREAL PROPERTY, 
 defined, 309. 
 
 COUNSEL, 
 
 arguments of, 676, 713. 
 
 prisoner's right to be heard by, 702. 
 
 opening statements, 709. 
 
 COURT OF CUSTOMS APPEALS, 
 jurisdiction, 631, 640. 
 
 COURTS, 
 
 See Court of Customs Appeals; Courts of Justice; Courts 
 OF Law; Equity and Proceedings in Equity; Precedents. 
 duty to determine legal rights and duties, 15. 
 under feudal system, 336. 
 in England and United States, 588. 
 modern, 629-645, 656-682. 
 jurisdiction defined, 630. 
 federal, 631-643. 
 senate as a court, 632. 
 judicial circuits and districts, 633. 
 judicial power of United States, 634. 
 exclusive jurisdiction of, 635. 
 concurrent with state courts, 636. 
 jurisdiction of supreme court, 637. 
 jurisdiction of circuit courts of appeals. 638. 
 jurisdiction of circuit courts, 639. 
 jurisdiction of district courts, 639. 
 jurisdiction of court of claims, 641. 
 30 — Elem. Law.
 
 466 iNDUx 
 
 [References are to Sections] 
 
 COURTS— Continued. 
 
 United States commissioner, 642. 
 
 territorial courts, 643. 
 
 courts of District of Columbia, 643. 
 
 state courts, 644, 645. 
 
 jurisdiction of state courts, 645. 
 
 officers of, 656. 
 
 procedure of in civil cases, 656-682. 
 
 procedure in criminal cases, 692-715. 
 
 COURTS OF JUSTICE, 
 
 versus courts of law, 40. 
 
 COURTS OF LAW, 
 
 courts of justice versus courts of law, 40. 
 
 CREDITORS, 
 
 rights under feudal law, 342. 
 
 of decedent, 422. 
 
 of partnership, 509. 
 
 of individual partners, 509. 
 
 CRIME, 
 
 defined, 47, 242. 
 
 torts distinguished from crimes, 47. 
 
 various crimes defined, 263-304. 
 
 CRIMINAL LAW, 
 defined, 241. 
 
 crimes in United States, 242. 
 capacity to commit, 243. 
 statutes, how construed, 244. 
 infamous crimes, 245. 
 classification of, 246. 
 compounding, 247. 
 attempts, 248. 
 
 aiding, counseling, etc., 249. 
 intent and overt act, 250. 
 criminal carelessness, 251. 
 Ignorance and mistake of fact, 252. 
 ignorance of law, 253. 
 self-defense, 254. 
 offenses by wives, 255. 
 principal and agent, 256. 
 principal and accessory, 257. 
 drunkenness, 258.
 
 INDEX 467 
 
 [References are to Sections] 
 
 CRIMINAL LAW— Continued, 
 insanity, 259. 
 punishment, 260. 
 jurisdiction in, 261, 262. 
 definitions of various crimes, 263-304. 
 jurisdiction of sovereigns and ambassadors, 626. 
 
 CRIMINAL OFFENSES, 
 abortion, 264. 
 
 adultery, 265. * 
 
 fornication, 266. 
 incest, 267. 
 rape, 268. 
 seduction, 269. 
 
 abduction and kidnaping, 270. 
 bestiality, 271. 
 sodomy, 271. 
 affray, 272. 
 arson, 273. 
 assault, 274. 
 
 assault and battery, 275. 
 assault with intent, 276. 
 false imprisonment, 278. 
 barratry, 279. 
 champerty, 279. 
 maintenance, 279. 
 bigamy, 280. 
 polygamy, 280. 
 bribery, 281. 
 burglary, 282. 
 robbery, 283. 
 embezzlement, 284. 
 larceny, 285. 
 cheating, 286. 
 false pretenses, 286. 
 conspiracy, 287. 
 dueling, 289. 
 extortion, 290. 
 forgery, 291. 
 homicide, 292. 
 
 manslaughter, voluntary, 293. 
 manslaughter, involuntary, 294, 
 libel, 297. 
 malicious trespass, 298.
 
 468 INDEX 
 
 [References are to Sections^ 
 
 CRIMINAL OFFENSES— Continued, 
 malicious mischief, 298. 
 mayhem, 299. 
 nuisance, 300. 
 perjury, 301. 
 piracy, 302. 
 riot, 303. 
 treason, 304. 
 misprision of treason, 304. 
 
 CRIMINAL PROCEDURE, 
 described, 692-715. 
 
 CURTESY, 
 
 tenant by, 381. 
 
 CUSTOM, 
 
 See Peecedent. 
 
 as legal sources of law, 19, 31. 
 
 can establish law where none existed, 29. 
 
 as part of common law, 30. 
 
 origin and nature, 30. 
 
 particular distinguished from general, 31. 
 
 decreasing importance of as legal source, 32. 
 
 force of particular, 33. 
 
 definition and kinds of, 33. 
 
 different from usage, 33. 
 
 requisites of, 33. 
 
 D 
 DAMAGES, 
 
 See Business Relations; Compensatory Damages; Contract- 
 ual Duties; Mabital Duties; Punitive Damages. 
 for injuries causing death, 53. 
 for assault and battery, 61. 
 for false imprisonment, SS. 
 for malicious prosecution, 77. 
 special, in defamation, 85, 104. 
 for libel and slander, 104. 
 contemptuous, 104. 
 compensatory, 104. 
 exemplary, 104. 
 general, 104. 
 special, 104. 
 aggravation of, 104.
 
 INDKX 469 
 
 [References are to Sections] 
 
 DAMAGES— Continued, 
 mitigation of, 104. 
 for fraud, 130. 
 for nuisance, 151. 
 for negligence, 168. 
 for infringing trade-marks, 191. 
 for wrongs to personal property, 201. 
 for wrongs to real property, 211. 
 enticing away servant, 231. 
 seduction of servant or daughter, 231. 
 Interference with domestic or business relations, 240. 
 
 DAY, 373. 
 
 DAYS OF GRACE, 373. 
 
 DEATH, 
 
 recovery for injuries causing, 53. 
 
 DEBTS, 
 
 effect of war upon, 628. 
 
 DECEDENTS' ESTATES, 419-422. 
 
 DECEIT, 
 
 in general, 105-131. 
 
 DEDICATION, 
 
 of right of way, 325. 
 
 statutory and common law, 325 
 
 DEED, 
 
 quitclaim, 405. 
 
 warranty, 405. 
 
 special warranty, 405. 
 
 how executed, 405, 410. 
 
 delivery of, 405. 
 
 title, bond for, 405, 406. 
 
 by owners not in possession, 407. 
 
 forms of, 408. 
 
 recording of, 409. 
 
 capacity of parties, 410. 
 
 by officers, 411. 
 
 description of land in, 412. 
 
 of partners, 507. 
 
 of corporations, 522. 
 
 by attorney in fact, 532. 
 
 of guardians, 579.
 
 470 INDEX 
 
 [References are to Sections] 
 
 DEFAMATION, 
 
 in general, 78-104. 
 
 defined, 78. 
 
 when words considered defamatory, 85. 
 
 liability of author for publication, 89. 
 
 DEFECTS, 
 
 law, 44. 
 
 DEFINITION, 
 
 accord and satisfaction, 690. 
 
 administration of justice, 15. 
 
 administrative law, 611. 
 
 assault, 54. 
 
 assignor, 481. 
 
 battery, 56. 
 
 bill of attainder, 598. 
 
 bill of exchange, 471. 
 
 citizenship, 592. 
 
 civil arrest, 69. 
 
 codicil, 403. 
 
 consideration, 450. 
 
 constitution, 586. 
 
 constitutional law, 586. 
 
 crime, 47, 242. 
 
 criminal law, 241. 
 
 criminal offenses, 264-304. 
 
 declaratory precedent, 35. 
 
 deeds, 405. 
 
 defamation, 78. 
 
 estate in remainder, 388. 
 
 ex post facto law, 598. 
 
 false imprisonment, 62. 
 
 general custom, 31. 
 
 habeas corpus, 11. 
 
 homicide, 292. 
 
 incorporeal hereditaments, 184. 
 
 Insurance contract, 488. 
 
 International law, 625. 
 
 kinds of property, 309, 416. 
 
 law, 1, 2. 
 
 liberty, 4. 
 
 marriage, 556. 
 
 negligence, 156. 
 
 nuisance, 133.
 
 INDEX 471 
 
 [References are to Sections] 
 
 DEFINITION— Continued. 
 
 offer and acceptance, 433. 
 
 original precedents, 35. 
 
 parol contract, 428. 
 
 partnership, 503. ^ 
 
 police power, 600. 
 
 power, 5. 
 
 precedent, 34. 
 
 private law, 585. 
 
 promissory note, 471. 
 
 proximate cause, 171. 
 
 public law, 585. 
 
 purpresture, 145. 
 
 quasi corporation, 513. 
 
 surety, 481. 
 
 tenement, 314. 
 
 title bond, 405. 
 
 tort, 46, 47. 
 
 underwriter, 488. 
 
 undue influence, 438. 
 
 DELIVERY, 
 
 escrow, 405. 
 
 when essential to pass title, 500. 
 
 of part, 500. 
 
 to agent or carrier, 500. 
 
 symbolical, 500. 
 
 place of, 500. 
 
 DEPENDENCIES, 
 
 constitutional provisions concerning control, 605. ■ 
 
 DEPOSITIONS, 669. 
 
 DESCENT, 
 
 what law governs, 400. 
 title by, 400. 
 statutes of, 420. 
 
 DESCRIPTION, 
 
 of land in deed, 412. 
 
 Implied warranty in sale by description, 497. 
 
 DEVISE, 
 
 executory, 390. 
 title by, 401.
 
 472 INDEX 
 
 [References are to Sections ^ 
 
 DEVISEE. 
 
 right to enter, 422> 
 
 DISCHARGE OF CONTRACTS, 
 manner, 459. 
 
 DISTRESS, 374. 
 
 DISTRICT COURTS OF UNITED STATES, 
 jurisdiction, 639. 
 
 DIVORCE, 561. 
 
 DOMESDAY BOOK, 340. 
 
 DOMESTIC RELATIONS, 
 
 interference with, 230-232. 
 
 remedy for unlawful interference, 240. 
 
 law, 553-584. 
 
 DOMICILE OF INTESTATE, 
 
 law of, fixes rule of distribution, 19, 400. 
 
 DOWER, 
 
 estate of, 382. 
 
 at common law, 382. 
 
 how barred, 382. 
 
 assignment of, 383. 
 
 In lands sold by husband, 410. 
 
 DRAWEE OF BILL OF EXCHANGE, 475. 
 
 DRAWER OF BILL OF EXCHANGE, 475. 
 
 DRUNKENNESS, 
 
 in frauds, 110. 
 
 in negligence, 163. 
 
 in crimes, 258. 
 
 as affecting contracts, 448, 
 
 DUELING, 289. 
 
 DURESS, 
 
 as affecting negligence, 162. 
 defined, 438. 
 contracts under, 438.
 
 INDEX 473 
 
 [References are to Sections] 
 
 DUTIES, 
 
 See Contractual Duties; Legal Duties; Marital Duths; 
 Moral Duties. 
 
 DYING DECLARATIONS, 673, 712. 
 
 E 
 
 EASEMENTS, 
 
 defined, 328. 
 how acquired, 328. 
 how lost, 328. 
 license is not, 328. 
 
 EMBEZZLEMENT, 284. 
 
 EMBLEMENTS, 368, 371. 
 
 EMANCIPATION OF INFANT, 443, 566. 
 
 EMINENT DOMAIN, 
 title by, 413. 
 "basis of, 413. 
 who may obtain, 413. 
 proceedings to acquire, 413. 
 may be without jury, 413. 
 compensation must be made to owner, 413. 
 statute for acquiring must be followed strictly, 413. 
 proceedings not suits at common law, 413. 
 constitutional provisions, 602. 
 
 ENFORCEMENT, 
 
 See Specific Enforcement. 
 
 ENTIRETY, 
 
 estate by, 393. 
 
 EQUITY AND PROCEEDINGS IN EQUITY, 
 
 authority of equity courts in England, 40. 
 
 remedy for relief of minority stockholders, 519. 
 
 equity jurisdiction, 646. 
 
 prohibitory injunction, 647. 
 
 mandatory injunction, 647. 
 
 general scope of equity jurisdiction, 648. 
 
 full relief, 649. 
 
 suit in equity — pleadings, 650. 
 
 evidence in equity, 651.
 
 474 INDEX 
 
 [References are to Sections] 
 
 EQUITY AND PROCEEDINGS IN EQUITY— Continued, 
 hearing in equity, 651. 
 decree in equity, 651. 
 bill of review, 651. 
 
 ESCHEAT, 
 
 defined, 357. 
 title by, 414. 
 
 ESCROW, 405. 
 
 ESCUAGE, 341. 
 
 ESTATES, 
 
 See Modern Estates. 
 
 allodial, 334. 
 
 defined, 362. 
 
 fee-simple, 363. 
 
 fee in abeyance, 364. 
 
 for life, 366-370. 
 
 for years, 371. 
 
 at will, 376. 
 
 at sufferance, 377. 
 
 base fee, 378. 
 
 conditional fee, 379. 
 
 in tail, 380. 
 
 by curtesy, 381. 
 
 in dower, 382, 383. 
 
 upon condition, 384-387. 
 
 implied, 385. 
 
 expressed, 386. 
 
 in remainder, 388. 
 
 rule in Shelley's Case, 389. 
 
 executory devises, 390. 
 
 in reversion, 391. 
 
 in severalty, 392. 
 
 in joint tenancy, 393. 
 
 by the entirety, 393. 
 
 in common, 394. 
 
 of decedents, 419. 
 
 ESTOPPEL, 130. 
 
 EVIDENCE, 
 
 declarations of agents, 528.
 
 INDEX 475 
 
 [References are to Sections] 
 
 EVIDENCE— Continued. 
 
 constitutional provision forbidding person to give incriminat- 
 ing evidence against himself, 598. 
 in equity cases, 651. 
 
 when court may order stricken from record, 666. 
 conclusive, defined, 666. 
 prima facie, defined, 666. 
 tending to prove, defined, 666. 
 competent, defined, 666. 
 sufficient, defined, 666. 
 corroborative, defined, 666. 
 cumulative, defined, 666. 
 relevant, defined, 666. 
 admissible, defined, 666. 
 proper, defined, 666. 
 material, defined, 666. 
 direct, defined, 666. 
 circumstantial, defined, 666. 
 functions of court and jury, 667. 
 judicial notice, 668. 
 presumptions, 668. ' 
 
 written and oral, 669. 
 attendance of witnesses, 670. 
 competency of witnesses, 671. 
 privileged communications, 671. 
 hearsay, 672, 673. 
 admissions, 673. 
 dying declarations, 673, 712. 
 examination of witnesses, 674. 
 burden of proof, 675. 
 preponderance of, defined, 675. 
 rules of, in criminal cases, 711. 712. 
 confessions, 712. 
 special rules of, 712. 
 accomplice, evidence of, 712. 
 character, evidence of, 712. 
 
 EXAMINATION, 
 
 preliminary, 700. 
 of witnesses, 710. 
 
 EXECUTED CONTRACT OF INFANT, 444.
 
 476 INDEX 
 
 [References are to Sections] 
 
 EXECUTION, 
 civil, 682, 
 criminal, 715. 
 
 EXECUTIVE, 
 
 duties of, 614. 
 liability of, 614. 
 
 EXECUTORS, 
 
 appointment of, etc., 422. 
 
 promises under statute of frauds, 463. 
 
 EXECUTORY CONTRACTS, 426. 
 
 EXECUTORY DEVISES, 390. 
 
 EXPATRIATION, 
 right of, 601. 
 
 EX POST FACTO LAW, 
 defined, 598. ' 
 
 EXPRESS CONTRACT, 429. 
 
 EXPRESS WARRANTY, 
 defined, 497. 
 
 EXTORTION, 290. 
 
 EXTRADITION, 609, 699. 
 
 EXTRAORDINARY REMEDIES AND SPECIAL PROCEEDINGS, 
 mandamus, 616, 617. 
 quo warranto, 618, 619. 
 prohibition, 620. 
 habeas corpus, 621-623. 
 certiorari, 624. 
 contempt, 683, 684. 
 attachment, 685, 686. 
 garnishment, 687. 
 capias, 688. 
 arbitration, 689. 
 accord and satisfaction, 690. 
 partition, 691.
 
 INDEX 477 
 
 [References are to Sections^ 
 
 P 
 FACTOR, 526. 
 
 FALSE IMPRISONMENT, 
 defined, 62. 
 
 detention or restraint, 63. 
 unlawfulness, 64. 
 restraint without process, 65. 
 restraint under legal process, 66. 
 restraint by officers, 67. 
 remedies, 68. 
 
 privilege from arrest, 69, 70. 
 criminal, 278. 
 
 FALSE PRETENSES, 
 cheating by, 286. 
 
 FEDERAL COURTS, 
 
 jurisdiction and procedure of, 631-643. 
 
 FEDERAL GOVERNMENT, 
 in general, 604-710. 
 powers contrasted with those of state government, 604. 
 
 FEE SIMPLE, 
 
 estate, 362, 363. 
 in abeyance, 364. 
 
 FEE, 
 
 base, 378. 
 conditional, 379. 
 tail, 380. 
 
 FELLOW SERVANTS, 
 defined, 550. 
 
 FEUDAL SYSTEM, 
 
 in general, 333-357. 
 origin and nature, 333- 
 fiefs and feuds, 333, 342. 
 abolition of, 343. 
 
 FINES, 356. 
 
 FIXTURES, 
 
 as between landlord and tenant, 317. 
 as between vendor and vendee, 317.
 
 478 INDIvX 
 
 [References are to Sections^ 
 
 FIXTURES— Continued. 
 
 as between heir and executor, 317. 
 requisites of, 317. 
 
 FORCE, 
 
 damages where used to interfere with business relations, 234. 
 
 FOREIGN BILLS OF EXCHANGE, 474. 
 
 FOREIGN CORPORATIONS, 
 
 state's right to refuse permission to do business, 516. 
 
 FORFEITURE, 
 
 relief against, 387. 
 
 FORGERY, 291. 
 
 FORNICATION, 266. 
 
 FRANCHISES, 330. 
 
 FRANK TENEMENT, 349. 
 
 FRAUD, 
 
 statutes against, liberally construed, 28. 
 
 in general, 105-131. 
 
 kinds of, 105. 
 
 in confidential relations, 106, 563. 
 
 illegal sexual relations, 107. 
 
 by trustees, 108. 
 
 attorneys, 109. 
 
 physicians, 109. 
 
 clergymen, 109. 
 
 persons of weak mind, 110. 
 
 between equals. 111. 
 
 fraud defined, 112. 
 
 by silence, 113. 
 
 equal opportunities, 114. 
 
 elements of fraud, 115. 
 
 representations and warranty, 116. 
 
 clearness and certainty, 117. 
 
 matters of law, 118. 
 
 opinions, 119. 
 
 matters of fact, 120. 
 
 promises, 121. 
 
 materiality, 122. 
 
 falsity, 123.
 
 INDEX 479 
 
 [References are to Sectionsf^ 
 
 FRAUD— Continued. 
 
 "Wrongdoer's knowledge, 124. 
 
 wrongdoer's intent, 125. 
 
 who entitled to rely, 126. 
 
 representations must be acted upon, 127. 
 
 injured person's belief, 128. 
 
 damages, 129. 
 
 remedies for fraud, 130. 
 
 personal injuries through, 131. 
 
 effect on contract, 437. 
 
 of infant, 446. 
 
 in insurance contracts, 491. 
 
 in sales of personal property, 497. 
 
 partners, 506. 
 
 by corporations, 523. 
 
 principal and agent, 530. 
 
 parties engaged to marry, 555. 
 
 husband and wife, 563. 
 
 parent and child, 568. 
 
 FRAUDS, STATUTE OF, 
 history of, 461. 
 provisions of, 462. 
 
 promises of executors and administrators, 463. 
 debt, default and miscarriage defined, 464. 
 collateral obligation, 465. 
 
 agreements in consideration of marriage, 466. 
 contracts for sales of lands, 467. 
 agreements not to be performed within a year, 468. 
 note or memorandum, 469. 
 signature to memorandum, 470. 
 sale of goods, 499. 
 
 FREE SOCAGE, 349. 
 
 FREE TENURE, 348. 
 
 FREEDOM, 
 
 of speech, 594. 
 of press, 594. 
 religious, 597. 
 
 FUNDAMENTAL RIGHTS, 
 enumerated, 591-603.
 
 480 INDfiX 
 
 [References are to Sections] 
 
 Q 
 
 GARNISHMENT, 687. 
 
 GIFT, 
 
 title by, 417. 
 
 GOODS, 
 
 sale under statute of frauds, 499. 
 
 GOOD WILL, 512, 191. 
 
 GUARANTOR, 
 
 defined, 481. 
 
 GUARDIAN AND WARD, 
 
 when presumption as to undue influence in execution of con- 
 tract will arise, 438. 
 who is guardian, 575. 
 different kinds of, 575. 
 natural, 576. 
 testamentary, 577. 
 legal — rights and duties of, 578. 
 deeds of, 579. 
 guardian ad litem, 580. 
 next friend, 581. 
 
 rights of guardian and ward in each other, 582. 
 wrongs between guardian and ward, 583. 
 guardian of insane person, 584. 
 
 GUARDIAN OF INSANE, 584. 
 contract of, 447. 
 
 GUARDIAN'S DEED, 579. 
 
 H 
 
 HABEAS CORPUS, 621-623. 
 definition, 11. 
 constitutional provisions, 11. 
 
 HAWAII, 
 
 when appeals lie from the Supreme Court, 637. 
 
 HEALTH, 
 
 right to, 12. 
 
 HEARSAY EVIDENCE, 672, 673. 
 dying declarations, 673, 712.
 
 INDEX 48J 
 
 [References are to Sections] 
 
 HEIRS, 
 
 use of word in deeds and wills, 365. 
 
 HEREDITAMENTS, 
 
 incorporeal, 184, 321. 
 
 HIGHWAYS, 
 
 obstruction of, 143. 
 what is a highway, 144. 
 purprestures, 145. 
 what is an obstruction, 146. 
 duration of obstruction, 147. 
 objects near highway, 148. 
 authorized obstruction, 149. 
 lands bounded by, 319. 
 dedication of, 325. 
 
 HISTORICAL SOURCES, 
 law, 19. 
 
 HOLDER OF BILL OR NOTE, 476. 
 duty of, 477. 
 
 HOLIDAY, 
 
 legal, 373. 
 
 HOMAGE, 337. 
 
 HOMICIDE, 
 
 murder in first degree, 292. 
 
 murder in second degree, 292. 
 
 voluntary manslaughter, 293. 
 
 involuntary manslaughter, '^9^. 
 
 justifiable, 295. 
 
 malice, 296. 
 
 dying declarations, 673, 712. 
 
 HUSBAND AND WIFE, 
 
 damages where marital duties interfered with, 232. 
 crimes, 255. 
 polygamy, 280. 
 antenuptial agreements, 382. 
 dower, 382. 
 
 assignment of dower, 383. 
 
 where presumption as to undue influence in execution of con- 
 tract will arise, 438. 
 marriage, 556-559. 
 31 — Ekm. Law.
 
 482 INDEX 
 
 [References are to Sections] 
 
 HUSBAND AND WIFE— Continued, 
 duties and rights of, 560. 
 divorce, 561. 
 injuries between, 562. 
 frauds, 563. 
 injuries by third persons, 564. 
 
 IGNORANCE, 
 
 of law, 118, 253. 
 of fact, 120, 252. 
 
 ILLEGAL CONTRACT, 439. 
 
 ILLEGITIMATE CHILDREN, 
 inheritance by, 400. 
 who are, 565. 
 
 IMPANELING JURY, 708. 
 
 IMPLICATION, 
 
 repeal by, 28. 
 
 IMPLIED CONTRACTS, 430. 
 
 IMPLIED LICENSE, 216. 
 
 IMPLIED REVOCATION OF WILLS. 404. 
 
 IMPLIED WARRANTY, 
 
 in sale by description, 497. 
 
 IMPOSSIBLE CONTRACTS. 43S. 
 
 IMPRISONMENT, 
 
 See False Imprisonment. 
 
 INADEQUACY OF CONSIDERATION. 451. 
 INCEST. 267. 
 
 INCORPOREAL PROPERTY, 
 
 definitions, 184. 185. 309, 321. 
 wrongs to, 184-191. 
 statutory provisions. 186. 
 patents. 187. 
 copyrights. 188. 
 literary property, 189.
 
 INDEX 483 
 
 [References are to Sections] 
 
 INCORPOREAL PROPERTY— Continued, 
 private letters, 190. 
 trade-marks, 191. 
 kinds, 321. 
 advowsons, 322. 
 tithes, 323. 
 
 right of common, 324. 
 right of way, 325-327. 
 easements, 328. 
 offices and dignities, 329. 
 franchises, 330. 
 rents, 331. 
 liens, 332. 
 
 INCREASE, 
 
 title by, 417. 
 
 INDIANS, 
 
 titles of, 313. 
 
 INDICT I\IENT, 
 
 pleas to, 706. 
 
 INDICTMENT AND INFORMATION, 705. 
 
 INDORSEMENT 
 
 in general, ^76. 
 special, 478. 
 in blank, 478. 
 
 INDORSER, 
 
 defined, 481. 
 
 INFAMOUS CRIME, 245. 
 
 INFANCY, 
 
 See Infants. 
 
 a personal privilege, 444. 
 
 INFANTS, 
 
 recovery for death of, 53. 
 negligence of, 164, 182. 
 capacity to commit crime, 243. 
 contracts of, 442, 443. 
 emancipation of. 443, 566. 
 frauds of, 446, 568. 
 parent and child, 565-574.
 
 484 INDEX 
 
 [References are to Sections] 
 
 INFANTS— Continued, 
 frauds upon, 568. 
 guardian and ward, 575-584. 
 suits by, 578-581. 
 
 INFLUENCE, 
 
 Sec Undue Influence. 
 
 INJUNCTION, 
 
 example of legal remedy, 15. 
 
 against defamation, 103. 
 
 frauds, 130. 
 
 nuisance, 151. 
 
 patents. 187. 
 
 copyrights, 188. 
 
 trade-marks and trade-names, 191. 
 
 personal property, 201. 
 
 real property, 211. 
 
 against unlawful combinations, 240. 
 
 when granted, 647. 
 
 prohibitory, 647. 
 
 mandatory, 647. 
 
 temporary, 647. 
 
 perpetual, 647. 
 
 INJURY, 
 
 intentional, to business relations, as tort, Z'd6. 
 
 INLAND BILLS OF EXCHANGE, 474. 
 
 INSANE, 
 
 frauds against, 110. 
 negligence of, 162, 178. 
 crimes of, 259. 
 contracts of, 447. 
 guardian of, 584. 
 
 INSTRUCTIONS, 676. 
 
 INSURANCE, 
 
 contract of, definition, 488. 
 parties, 488. 
 may be by parol, 488. 
 what may be insured, 488. 
 form of contract, .489. 
 interpretation of, 490.
 
 INDEX 485 
 
 [References are to Sections] 
 
 INSURANCE— Continued. 
 
 warranty and representation distinguished, 491. 
 
 fraud in, 491. 
 
 premium, payment of, 492. 
 
 waiver of payment of premium, 493. 
 
 insurable interest, 494. 
 
 increase of risk, 495. 
 
 INTENT, 
 
 in assault and battery, 55, 57. 
 
 in malicious prosecution, 72. 
 
 in defamation, 92. 
 
 in fraud, 125. 
 
 in nuisance, 135. 
 
 in negligence, 157. 
 
 in crimes, 250. 
 
 INTERFERENCE, 
 
 domestic or business relations, 230-240. 
 
 INTERNATIONAL LAW, 
 defined, 625. 
 origin of, 625. 
 how enforced, 625. 
 conventional law of nations, 626. 
 rights of neutrals, 627. 
 rights of belligerents, 628. 
 
 INTERPLEADER, 501, 648. 
 
 INTERPRETATION, 
 
 what is and office of, 28. 
 
 rules of, 28. 
 
 of penal statutes, 28. 
 
 of remedial statutes, 28. 
 
 of statutes in pari materia, 28, 
 
 of statutes against frauds, 28. 
 
 of statutes in derogation of common law, 28. 
 
 technical words, 28. 
 
 preamble and title, when considered, 28, 
 
 effect of contemporaneous, 28. 
 
 proviso, how regarded, 28. 
 
 of libel and slander, 90. 
 
 of contracts, 440. 
 
 of insurance contracts, 490.
 
 486 INDEX 
 
 [References arc to iiections] 
 
 INTERSTATE COMMEIICE, 
 
 congressional regulation, 606. 
 state regulation, 607. 
 
 INTERSTATE LAW, 400. 
 
 INTERSTATE RELATIONS, 
 
 ' constitutional provision concerning, 609. 
 
 INTESTATE AND TESTATOR, 419. 
 
 domicile, law of, as to property, 42C. 
 
 ISLANDS, 
 
 ownership of, 315, 316. 
 
 ISSUES OF FACT OR LAW, 663. 
 
 JOINT TENANCY, 393. 
 
 JUDGMENT, 
 
 in malicious prosecutions, 73, 74. 
 
 title by, 417. 
 
 arrest of, 679. 
 
 notwithstanding verdict, 679. 
 
 forms of, 680. 
 
 by confession, 680. 
 
 by default, 680. 
 
 upon nonsuit, 680. 
 
 upon demurrer, 680. 
 
 upon verdict, 680. 
 
 interlocutory, 680. 
 
 final, 680. 
 
 JUDICIAL NOTICE, 668. 
 
 JUDICIAL OFFICERS, 
 
 liability and privilege of, 97, 615. 
 
 JURISDICTION, 
 
 of crimes, 261, 262. 
 
 defined, 615, 63C, 
 
 concurrent of state courts and United States courts, 63(1. 
 
 of United States Supreme Court, 637. 
 
 of circuit courts of appeals, 638. 
 
 of circuit courts of United States, 639. 
 
 of district courts of United States, 639.
 
 INDEX 487 
 
 [References are to Sections] 
 
 JURISDICTION— Continued, 
 of court of claims, 641. 
 of state courts, 645. 
 in equity, 646. 
 objections to, how and when made, 661. 
 
 JURY, 664, 667, 677. 
 
 empaneling, 708. 
 
 conduct in criminal eases, 714. 
 
 verdict of, 714. 
 
 JURY TRIAL, 
 
 civil suits involving over twenty dollars, 598. 
 criminal cases, 598. 
 
 JUSTICE, 
 
 See Administration of Justice; Courts of Justice. 
 
 JUSTIFICATION, 
 
 for assault and battery, 59, 277. 
 
 in defamation, 93. 
 
 competition as justification for Injuries to employer, 236. 
 
 JUSTINIAN, 
 
 definition of law, 1. 
 
 K 
 
 KIDNAPING, 270. 
 
 KIN, 
 
 next of, recovery for injuries causing death, 53. 
 
 KIND, 
 
 rents payable in, 331. 
 
 KING, 
 
 lord paramount, 346, 347. 
 
 KNIGHT SERVICE, 350. 
 
 L 
 
 LAND, 
 
 wrongs to, 202-222. 
 defined, 314. 
 
 bounded by streams, 315. 
 extent of, 318. 
 boundary line of, 318.
 
 488 INDEX 
 
 [References are to Sections] 
 
 LAND — Continued. 
 
 bounded by highways, 319. 
 
 deeds of lands held adversely, 407. 
 
 contract for sale under statute of frauds, 467. 
 
 LARCENY, 285. 
 
 LAW, 
 
 See Administrattve Law; Admiralty; Courts of Law; Crimi- 
 nal Law; International Law; Precedents. 
 definition, 1, 2. 
 confusion in definitions, 2. 
 distinction between legal and moral rights, 6. 
 nature and sources, 1-36. 
 purpose, 3. 
 
 written and unwritten, 16, 18, 24-29. 
 kinds of, in United States, 17. 
 historical and legal sources, 19. 
 merchant, origin of, 21, 473. 
 social utility, 37-44. 
 scientific character, 42. 
 
 science of law distinguished from science of legislation, 42. 
 protection against error and corruption, 43. 
 defects, 44. 
 classification, 45. 
 of torts, 45-420. 
 misrepresentation of, 118. 
 of place, 482. 
 international, 625-628. 
 judicial notice of, 668. 
 
 LEADING QUESTIONS, 674. 
 
 LEGAL DUTIES, 
 in general, 3. 
 
 LEGAL REMEDIES, 
 classes, 15. 
 
 LEGAL RIGHTS, 
 in general, 3. 
 scope, 7. 
 protection through physical powers ot the state; 15. 
 
 LEGAL SOURCES, 
 
 in general, 1-36.
 
 INDEX 489 
 
 ^References are to Sections] 
 
 LEGALITY OF OBJECT, 
 
 effect on validity of contract, 435. 
 
 LEGATEE, 422. 
 
 LEGISLATIVE POWER, 
 
 where vested in United States, 23. 
 
 LEGISLATURE, 
 
 power to bind succeeding legislature, 28. 
 privilege of, 96. 
 liability of, 613. 
 
 LIBEL AND SLAND'^R 
 in general, 80. 
 slander defined, 81. 
 slander imputing crime, 82. 
 slander imputing disease, 83. 
 slander affecting office, etc., 84. 
 
 slander actionable by reason of special damages, 85. 
 libel defined, 86, 87. 
 rights of newspapers, 88. 
 publication of words, 89. 
 construction of words, 90. 
 certainty in, 91. 
 malice in, 92. 
 justification in, 93. 
 privilege in, 94. 
 absolute privilege, 95. 
 legislative proceedings, 96. 
 judicial proceedings, 97. 
 naval and military matters 98. 
 qualified privilege, 99. 
 matters of public interest, 100. 
 communications under duty, 101. 
 communications in self-defense, ""OZ- 
 remedies, 103. 
 damages, 104. 
 criminal, 297. 
 
 LIBEL IN ADMIRALTY, 654. 
 
 LIBERTY, 
 
 definition, 4.
 
 490 INDEX 
 
 [References are to Sections] 
 
 LICENSE, 
 
 to enter upon land, 21C. 
 not an easement, 328. 
 
 LIEN, 
 
 how created, 332. 
 statutory, 332. 
 equitable, 332. 
 by contract, 332. 
 common law, 332. 
 
 LIFE, 
 
 right to, 9, 50. 
 
 when may be taken, 51. 
 
 civil remedies for unlawful taking, 52, bi^ 
 
 self-defense, 60. 
 
 estates for, 366. 
 
 rights of life tenant, 367. 
 
 insurance of, 488-495. 
 
 LIMITATIONS, 
 
 statute of, 396, 397. 
 
 LIMITED PARTNERSHIP, 511. 
 
 LORD, 
 
 paramount, 346. 
 middle, 347. 
 
 LUNATICS, 
 
 See Insane. 
 contracts of, 442, 447. 
 
 ikl 
 
 MAINTENANCE, 279. 
 
 MALICE, 
 
 in libel and slander, y2. 
 criminal, 296. 
 
 MALICIOUS PROSECUTION, 
 elements of, 71. 
 motive, 72. 
 
 want of probable cause, 73. 
 termination of, 74. 
 of civil actions, 75.
 
 INDEX 491 
 
 [References are to .SfecHons] 
 
 MALICIOUS PROSECUTION— Continued, 
 abuse of process, 76. 
 remedies for, 77. 
 
 MALICIOUS TRESPASS, 298. 
 
 MANDAMUS, 616, 617. 
 
 MANDATORY INJUNCTION, 647. 
 
 MANSLAUGHTER, 
 voluntary, 293. 
 involuntary, 294. 
 
 MARITAL DUTIES, 
 
 recovery of damages for interference, 232. 
 
 MARRIAGE, 
 
 right of, under feudal system, 335, 355. 
 
 title by, 399. 
 
 agreements for, under statute of frauds, 466. 
 
 right of, 554. 
 
 fraud between engaged parties, 555. 
 
 defined, 556. 
 
 Illegal, 557. 
 
 ceremony of, 558. 
 
 foreign, 559. 
 
 MARRIED WOMEN, 
 crimes of, 255. 
 contracts of, 449. 
 torts of, 560. 
 wrongs to, 562, 564. 
 
 MASTER AND SERVANT, 
 
 damages for enticing servant away, 231. 
 
 damages for seducing servant, 231. 
 
 in general, 525. 
 
 growth of relation, 533. 
 
 apprentices, 534. 
 
 who is master or servant, 535. 
 
 independent contractor, 536. 
 
 contract between master and servant, 537. 
 
 termination of relation, 538. 
 
 discharge by master, 539. 
 
 abandonment by servant, 540.
 
 492 INDEX 
 
 [References are to Sections] 
 
 MASTER AND SERVANT— Continued. 
 
 wrongs growing out of relation independent of contract, 541. 
 
 liability of third persons to master, 542. 
 
 liability of third persons to servant, 543. 
 
 liability of master for injury to others, 544. 
 
 intentional and unintentional injuries, 545. 
 
 liability of servant for injuries to others, 546. 
 
 master's liability to servant, 547. 
 
 duties of master to servant, 548. 
 
 risks assumed by servant, 549. 
 
 fellow servants, 550. 
 
 vice principal, 551. 
 
 servant's liability to master, 552. 
 
 MAYHEM, 299. 
 
 MEETING OF MINDS, 436. 
 
 MEMORANDUM, 
 
 under statute of frauds, 469. 
 signature to, 470. 
 
 MIDDLE LORDS, 347. 
 
 MILITARY SERVICE, 
 feudal system, 338. 
 
 MISPRISION OF TREASON, 304. 
 
 MISREPRESENTATION, 
 
 effect on contract, 437. 
 
 MISTAKE, 
 
 effect on contract, 436. 
 
 MODERN ESTATES, 358-394. 
 
 MONTH, 373. 
 
 MORAL DUTIES, 
 
 distinguished from legal duties, 6. 
 
 MORAL RIGHTS, 
 
 distinguished from legal rights, 6. 
 
 MORALS AND LAW, 6. 
 
 MORTGAGES, 387.
 
 INDEX 493 
 
 [references are to Sections^ 
 
 MOTION FOR NEW TRIAL, 715. 
 
 MURDER, 
 
 defined. 292. 
 
 N 
 
 NATIONS, 
 
 law of, 625-628. 
 
 NATURALIZATION, 
 
 under laws of the United States, 592, 
 under state laws, 592. 
 collective, 592. 
 
 NATURE AND SOURCES OF LAW, 
 in general, 1-36. 
 
 NAVIGABLE STREAMS, 
 
 as boundaries, 315, 31o. 
 jurisdiction over, 653. 
 torts on, 653. 
 
 NECESSARIES, 
 
 what are, 444. 
 
 NEGLIGENCE, 153-183. 
 actionable, 153. 
 in contract or tort, 154. 
 elements of, 155. 
 definition, 156. 
 inadvertence, 157. 
 inevitable accident, 158. 
 ordinary care, 159. 
 no degrees in, 160. 
 acts or omissions, 161. 
 acts of irresponsible persons, 162. 
 intoxication, 163. 
 
 of persons physically infirm, 164. 
 the person to whom duty is owing, 165. 
 the duty, 166. 
 duty implied by law, 167. 
 damages, 168. 
 cause and effect, 169. 
 legal connection of, cause and emict- 170- 
 proximate cause, 171. 
 plaintiff's own conduct, 172.
 
 494 INDEX , 
 
 [References are to SectionsJ 
 
 NEGLIGENCE— Continued. 
 
 plaintiff's unlawful act, 173. 
 
 contributory negligence, 174. 
 
 tests of contributory negligence, 175. 
 
 plaintiff's knowledge of danger, 176. 
 
 danger incurred to save life or discharge duty, 177. 
 
 persons of defective powers, 178. 
 
 misleading conduct, 179. 
 
 imputable negligence, 180. 
 
 passenger and carrier, imputed negligence of, 181. 
 
 modern rule as to carriers, 181. 
 
 children, imputed negligence, 182. 
 
 presumptions as to negligence, 183. 
 
 criminal, 251. 
 
 NEGOTIABLE INSTRUMENTS, 471-487. 
 definition of bill of exchange, 471. 
 definition of promissory note, 471 
 uniform law, 472. 
 
 NEUTRALITY, 627. 
 
 NEW PROMISE, 
 
 as waiver of defense of statute of limitations, 450. 
 
 NEWSPAPERS, 
 
 libels by, 88. 
 liberty of press, 594. 
 
 NEW TRIAL, 
 
 civil cases, 678. 
 criminal cases, 715. 
 
 NEXT FRIEND OF INFANT, 581. 
 
 NOTES, 
 
 See Promissory Notes. 
 
 NOTICE OF PROTEST, 477. 
 
 NUISANCE, 
 
 how related to negligence, 132. 
 defined, 133. 
 
 coming to a nuisance, 134. 
 intent or motive in. 135 
 care or negligence in, 1VJ6. 
 what may be, 137.
 
 INDEX 495 
 
 [References are to Sections] 
 
 NUISANCE— Continued, 
 kinds of, 138. 
 public, 139. 
 private, 140. 
 
 mixed, public and private, 141. 
 authorized, 142. 
 obstructing highways, 143-150. 
 special injury, 150. 
 remedies, 151. 
 evidence of, 152. 
 to real property, 210. 
 criminal, 300. 
 
 NUNCUPATIVE WILLS, 403. 
 
 OBJECT, 
 
 See Legality of Object. 
 
 O 
 
 OBLIGATION OF CONTRACTS, 
 
 constitutional provisions, 603. 
 
 OBSTRUCTION OF HIGHWAYS, 143-150. 
 
 OCCUPANCY, 
 
 title by, 396. 
 
 title to personal property by, 417. 
 
 OCCUPYING CLAIMANT, 
 rights of, 398. 
 
 OFFENSES, 
 
 criminal, 263-304. 
 
 OFFER AND ACCEPTANCE, 
 definition, 433. 
 revocation of offer, 433. 
 
 OFFICERS, 
 
 military, arrest by, 65. 
 peace, arrest by, 65. 
 deeds by, 411. 
 performance of duties of, &12. 
 
 OFFICES AND DIGNITIES, 329. 
 
 OPINIONS, 
 
 when frauds, 119.
 
 ^6 INDEX 
 
 [References are to Sections] 
 
 ORDINANCES, 
 
 statutory law of city governments, 23. 
 
 OWNERSHIP, 
 
 basis of, 306. 
 private, 307. 
 
 PAPERS, 
 
 when privileged, 97. 
 
 PARAVAILE, 
 
 tenant, 347. 
 
 PARENT AND CHILD, 
 
 parent's right to punish child, 59. 
 defense of person in loco parentis, 60. 
 parent's right to restrain child, 65. 
 
 parent's right to damages when daughter seduced, 231. 
 rules of descent, 400, 566. 
 
 when presumption as to undue influence in execution of con- 
 tract will arise, 438. 
 emancipation, 443, 566. 
 legitimate and illegitimate children, 565. 
 rights and duties of parent and child, 566. 
 liability for necessaries furnished child, 566. 
 wrongs between parent and child, 567. 
 fraud between parent and child, 568. 
 wrongs by third persons, 569. 
 child's interest in parent, 570. 
 parent's interest in child, 571. 
 physical injuries to child, 572. 
 enticing away child, 573. 
 seduction of child, 574. 
 
 PAROL CONTRACT, 
 
 defined, 428. 
 evidence, 669. 
 
 PARTICULAR CONTRACTS, 
 in general, 496-502. 
 
 PARTIES, 
 
 to contracts, 441-449. 
 to actions, 651.
 
 INDEX 497 
 
 [References are to Sections] 
 
 PARTITION, 
 
 proceedings for, 691. 
 
 PARTITION FENCES, 328. 
 
 PARTNERS, 
 
 imputed negligence, 180. 
 promissory notes of, 483. 
 frauds of, 506. 
 deeds of, 507. 
 as agents, 526. 
 
 PARTNERSHIP, 
 
 promissory note of, 483. 
 
 definition, 503. 
 
 partners agents for one another, 503. 
 
 silent partner, 504. 
 
 nominal partner, 504. 
 
 ostensible, 504. 
 
 retiring partner, what notice necessary, 504. 
 
 how formed, 505. 
 
 rights and powers of partners before dissolution, 505, 506. 
 
 deeds of partners, 507. 
 
 rights and powers of partners after dissolution, 508, 510. 
 
 how dissolved, 508. 
 
 winding up of business of, 508. 
 
 dissolution by death, 508. 
 
 creditors of, 509. 
 
 creditors of individual partner, 509. 
 
 limited, 511. 
 
 good will, 512. 
 
 distinguished from corporation, 514. 
 
 PARTY V/ALLS, 328. 
 
 PASSENGER, 
 
 modern rule as to negligence of carrier, 181. 
 
 PATENT RIGHTS, 187. 
 
 PAYEE, 
 
 defined, 475. 
 
 PENAL STATUTES, 
 
 how construed, 28. 
 
 PERJURY, 301. 
 
 32 — Elem. Law.
 
 498 INDEX 
 
 [References are to Sections] 
 
 PERSON, 
 
 security of, 8, 50. 
 
 liberty of, 10. 
 
 right to security, 50-53. 
 
 PERSONAL PROPERTY, 
 wrongs to, 192-201. 
 trespass by force, 193. 
 possession, 194. 
 the force, 195. 
 conversion, 196. 
 
 conversion by persons rightfully in possession, 197. 
 demand for possession, 198. 
 conversion by tenant in common, 199. 
 taken by legal process, 200. 
 remedies for wrongs to, 201. 
 defined, 309, 416. 
 
 may be acquired by descent, 417. 
 title to, how acquired, 417. 
 occupancy, 417. 
 accession, 417. 
 confusion, 417. 
 gift, 417. 
 bill of sale, 417. 
 succession, 417. 
 bequest, 417. 
 operation of law, 417. 
 
 sales by executors, administrators, etc., 417. 
 judicial and execution sales, 417. 
 burial rights, 418. 
 
 PHILIPPINE ISLANDS, 
 
 when cases from Supreme Court may be reviewed, 637. 
 
 PHYSICIAN, 
 
 frauds of, 109. 
 privilege of, 671. 
 
 PIRACY, 302. 
 
 PLACE, 
 
 law of place of payment fixes rights of parties to negotiable 
 
 instrument, 482. 
 
 PLEADINGS, 
 
 when privileged, 97.
 
 INDEX 499 
 
 [References are to Sections] 
 
 PLEADINGS— Continued, 
 mandamus, 616, 617. 
 quo warranto, 618, 619. 
 prohibition, 620. 
 habeas corpus, 621. 
 in equity, 650. 
 in admiralty, 654. 
 complaint, bill or declaration, 657. 
 confession and avoidance, 660. 
 demurrers, 660. 
 
 pleas and answers to jurisdiction, 660, 661. 
 partition, 691. 
 
 POLICE POWER, 
 defined, 600. 
 
 POLICY OF INSURANCE, 488. 
 
 POLYGAMY, 280. 
 
 PORTO RICO, 
 
 when judgment of Supreme Court may be reviewed, 637. 
 
 POSTHUMOUS CHILD, 
 
 effect of birth to revoke will, 404. 
 
 POWER, 
 
 defined, 5. 
 
 POWER OF ATTORNEY, 
 defined, 526. 
 
 PRECEDENT, 
 
 condition, 387. 
 
 PRECEDENTS, 
 
 as source of law, 19, 34-36. 
 
 limitation of necessities of individual case, 29. 
 
 defined, 34. 
 
 declaratory and original, 35. 
 
 importance of, 36. 
 
 PREMIUM, 
 
 in insurance contract, 492. 
 waiver of payment of, 493. 
 
 PRESS, 
 
 freedom, 594.
 
 500 INDEX 
 
 [References are to Sections] 
 
 PRESUMPTIONS, 
 
 undue influence or fraud in executing contract, 438. 
 judicial notice, 668. 
 
 PRIMER SEIZIN, 353. 
 
 PRINCIPAL AND ACCESSORY, 257. 
 
 PRINCIPAL AND AGENT, 
 
 See Agent. 
 
 crimes of, 256. 
 
 law of, 525-532. 
 
 creation of authority of agent, 526. 
 
 liability on contract made by agent without disclosing name 
 
 of principal, 529. 
 frauds of, 530. 
 
 PRIVATE LAW, 
 
 defined, 27, 585. 
 
 PRIVATE LETTERS, 190. 
 
 PRIVATE OWNERSHIP, 307, 308. 
 
 PRIVILEGE, 
 
 from arrest, who may claim, 69. 
 in libel and slander, 94, 95. 
 
 PRIVILEGED COMMUNICATIONS, 101, 109, 671. 
 
 PRIZE CASES, 
 
 jurisdiction, 637. 
 
 PRIZE FIGHTING, 
 
 as misdemeanor, 272. 
 
 PROCEDURE, 
 
 constitutional guaranties concerning, 599. 
 
 PROCESS, 
 
 abuse of, 76. 
 
 issue, 658. 
 
 how served and returned, 659. 
 
 PROHIBITION, 
 
 writ of, 620. 
 
 PROMISES, 
 
 when frauds, 121. 
 
 when enforced by courts, 450.
 
 INDEX 501 
 
 [References are to Sections] 
 
 PROMISSORY NOTE, 
 
 definition of, 471. 
 negotiability, 473. 
 protest, 477. 
 Indorsement, 478, 481. 
 signature to, 479. 
 certainty, 480. 
 surety, 481. 
 guarantor, 481. 
 assignor, 481. 
 law of place, 482. 
 of agents, 483. 
 of partners, 483. 
 capacity of parties, 484. 
 consideration of, 485. 
 innocent purchaser, 486. 
 
 PROOF, 
 
 kinds of evidence, 666. 
 
 PROPERTY, 
 
 See Incorporeal Property; Personal Property; Real Prop- 
 erty. 
 right to protect, 60. 
 
 wrongs to incorporeal property, 184-191. 
 wrongs to personal property, 192-201. 
 wrongs to real property, 202-222. 
 In general, 305-309. 
 basis of ownership, 306. 
 origin of private ownership, 307. 
 importance of ownership, 308. 
 kinds of, 309. 
 real, 309. 
 personal, 309. 
 corporeal, 309. 
 incorporeal, 309. 
 
 PROSECUTION, 
 
 See Malicious Prosecution. 
 
 PROTEST OF NEGOTIABLE INSTRUMENTS, 
 notice of, 477. 
 
 PUBLIC DUTIES, 
 
 of private persons or corporations, 524. 
 of officers, 612-615.
 
 502 INDEX 
 
 [References are to Sections] 
 
 PUBLIC LAW, 
 defined, 27. 
 in general, 585-628. 
 
 PUBLICATION, 
 
 notice by, 373. 
 
 PUBLICATION IN LIBEL AND SLANDER, 89. 
 
 "PUFFING," 
 
 not warranty, 497. 
 
 PUNISHMENT OF CRIMES, 242, 260. 
 
 PUNITIVE DAMAGES, 
 when awarded, 15. 
 
 PUNITIVE PROCEEDINGS, 
 
 criminal prosecutions, 15. 
 
 PURCHASE, 
 
 title by, 405. 
 
 PURCHASER, 
 
 innocent, 486. 
 
 PURPRESTURE, 
 defined, 145. 
 
 Q 
 
 QUITCLAIM DEED, 405. 
 QUASI CONTRACTS, 430. 
 QUASI CORPORATION, 513. 
 QUO WARRANTO, 618, 619. 
 
 R 
 
 RAPE, 268. 
 
 RATIFICATION, 
 
 of contract by Infant, 443-445. 
 
 of contract procured by fraud, 446. 
 
 of contract made by intoxicated person, 448 
 
 of agent's acts, 528. 
 
 REAL PROPERTY, 
 
 owner, rights of, 202. 
 dispossession, 203.
 
 INDEX 503 
 
 [References are to Sections] 
 
 REAL PROPERTY— Continued, 
 unlawful detention, 204. 
 remedies for injuries to, 205, 206. 
 remedies for wrongs to, 205, 209, 211. 
 injuries, 206. 
 waste, 207-209. 
 remedies for waste, 209. 
 nuisances affecting land, 210, 211. 
 remedies for, 211. 
 trespass upon, 212-214. 
 boundaries of, 213, 318. 
 who may be trespasser, 214. 
 license to enter upon, 215-222. 
 Implied license, 216. 
 express license, 217. 
 
 effect of statute of frauds on license, 218. 
 license by law, 219. 
 legal process, 220. 
 condemnation proceedings, 221. 
 effect of exceeding license, 222. 
 defined, 309, 314. 
 
 title to in United States, 310-313. 
 Indian titles, 313. 
 boundaries by streams, 315. 
 Islands, 315, 316. 
 fixtures, 317. 
 
 highway as boundary, 319. 
 appurtenances, 320. 
 estates in, 362-394, 
 fee simple, 363. 
 fee simple in abeyance, 364. 
 use of word heirs, 365, 389. 
 life estate, 366. 
 rights of life tenant, 367-370. 
 emblements, 368, 371. 
 estates for years. 371. 
 rents, 372, 375. 
 term of tenancy, '6T6. 
 distress, 374. 
 estate at will, 376. 
 estate at sufferance, 377. 
 base fee. 378. 
 conditional fee, 37£.
 
 504 INDEX 
 
 [References are to Sections\ 
 
 REAL PROPERTY— Continued. 
 
 estate tail, 380. 
 
 curtesy, 381. 
 
 dower, 382, 383, 410. 
 
 estates upon condition, 384-387. 
 
 remainders, 388. 
 
 rule in Shelley's Case, 389. 
 
 executory devises, 390. 
 
 reversions, 391. 
 
 estates in severalty, 392. 
 
 joint tenancy, 393. 
 
 estate by entirety, 393. 
 
 estates in common, 394. 
 
 title, how acquired, 395-415. 
 
 occupancy, 396. 
 
 adverse possession, 397. 
 
 occupying claimants, 398. 
 
 title by marriage, 399. 
 
 descent, 400. 
 
 devise and wills, 401-404. 
 
 purchase, 405. 
 
 title bond, 405, 406. 
 
 warranty, covenants of, 405. 
 
 deeds of conveyance, 405, 407-412. 
 
 deeds of land held adversely, 407. 
 
 forms of deeds, 408. 
 
 recording deeds, 409. 
 
 execution of deeds, 410. 
 
 deeds by officers, 411. 
 
 description of in deed, 412. 
 
 eminent domain, 413. 
 
 escheat, 414. 
 
 forfeiture, 415. 
 
 administrator and executor — rights in real estate, 421, 422. 
 
 contract for sale under statute oi frauds. 467. 
 
 deeds of partners, 507. 
 
 deeds of corporations, 522. 
 
 power of attorney, 532. 
 
 deeds of guardians, 579. 
 
 RECOGNIZANCE, 432. 
 
 RECORD, 
 
 contracts of, 432.
 
 INDEX 505 
 
 [References are to Sections] 
 
 RECOVERIES, 
 
 common, 380. 
 
 REGISTRATION OF DEEDS, 409. 
 
 RELATIONS, 
 
 See Business Relations; Confidential Relations; Domestic 
 
 Relations. 
 
 RELEASE, 
 
 part payment as consideration for, 452. 
 mutual by creditors, 453. 
 of disputed claims, 454. 
 
 RELIEFS, 339, 352. 
 
 RELIGIOUS LIBERTY, 
 
 constitutional provisions, 597. 
 
 REMAINDER, 
 
 estate in, 388. 
 
 vested and contingent, 388. 
 
 REMEDIAL STATUTES, 
 how construed, 28. 
 
 REMEDIES, ♦ 
 
 See Legal Remedies; Torts. 
 torts, 47. 
 
 assault and battery, 54. 
 "wrongful arrest, 68. 
 arrest of privileged persons, 70. 
 malicious prosecution, 77. 
 libel and slander, 103. 
 fraud, 130. 
 nuisance, 151. 
 
 wrongs to personal property, 201. 
 damage to land, 211. 
 damage by trespassing animals, 227. 
 
 unlawful interference with business or domestic relations, 240. 
 breach of contract, 460. 
 relief against administrative action, 611. 
 
 RENTS, 
 
 defined, 331, 372. 
 
 when due, 372. 
 
 forfeiture for nonpayment, 372.
 
 506 INDEX 
 
 [References are to Sections] 
 
 RENTS— Continued. 
 
 effect of destruction of premises, 372. 
 how payable, 373. 
 distress for, 374. 
 apportionment of, 375. 
 
 REPEAL, 
 
 by implication, 28. 
 
 of repealing statute, effect of, 28. •» 
 
 corporate charter, effects on rights of stockholders. 521. 
 
 REPRESENTATION, 
 
 fraudulent, 116-128. 
 
 false by infant, 446. 
 
 distinguished from warranty, 116, 491. 
 
 in insurance contracts, 491. 
 
 REPUTATION, 
 
 right to, 13, 79. 
 
 RETROACTIVE STATUTES, 
 right to enact, 26. 
 defamation, 79-103. 
 
 REVERSION, 
 
 estates in, 391. 
 
 REVOCATION, 
 
 of license to enter on land, 217. 
 
 of dedication of highway, 325. 
 
 of will, 404. 
 
 offer, 433. 
 
 of agency, 531. 
 
 RIGHT OF MARRIAGE, 
 
 under feudal system, 835, 355. 
 
 RIGHT OF WARDSHIP, 
 
 under feudal system, 335, 354. 
 
 RIGHT OF WAY, 
 
 by prescription, 325. 
 
 by dedication, 325. 
 
 by statutory proceedings, 325. 
 
 private, 326. 
 
 implied, 326.
 
 INDEX 507 
 
 [References are to Sections] 
 
 RIGHT OF WAY— Continued, 
 by grant, 326. 
 temporary, 327. 
 
 RIGHTS, 
 
 See Fundamental Rights; Legai. Rights; Moral Rights. 
 
 moral and legal, 3, 6. 
 
 of personal security, 8, 50-61. 
 
 to life, 9, 50. 
 
 of personal liberty, 10, 62-69. 
 
 to health, 12. 
 
 to reputation, 13, 79. 
 
 to property, 14. 
 
 to employ labor and to do business, 238, 239. 
 
 to marry, 554. 
 
 fundamental constitutional, 591-602. 
 
 of suffrage, 593. 
 
 to freedom of speech and press, 594. 
 
 to assemble, 595. 
 
 to bear arms, 596. 
 
 to religious liberty, 597. 
 
 against unlawful searches, 598. 
 
 to make contracts, 603. 
 
 to performance of official duties, 612-615. 
 
 RIOT, 303. 
 
 RISK IN INSURANCE CONTRACTS, 495. 
 
 ROBBERY, 283. 
 
 t 
 RULE IN SHELLEY'S CASE, 389. 
 
 S 
 
 SALES OF PERSONAL PROPERTY, 
 title by, 417. 
 
 memorandum under statute of frauds, 469, 470, 499. 
 essentials of, 496. 
 existence of thing sold, 497. 
 rescission of, for fraud, 497. 
 warranty in, 497. 
 general warranties, 497. 
 
 implied warranty in sale by description, 4yY. 
 title where goods to be delivered in future, 497.
 
 508 INDEX 
 
 [References are to Sections] 
 
 SALES OF PERSONAL PROPERTY— Continued, 
 stoppage in transitu, right of, 498. 
 transfer of title, 498. 
 sales within statute of frauds, 499. 
 how affected by statute of frauds, 499. 
 delivery and payment, 500. 
 fraudulent sales, 500. 
 when seller retains possession, 500. 
 
 • 
 
 SALES OF LANDS, 
 
 judicial and execution sales, 411. 
 
 by executors and administrators, 421, 422. 
 
 effect of statute of frauds on, 467. 
 
 note or memorandum under, 469. 
 
 in partition proceedings, 691. 
 
 SATISFACTION, 
 
 when good, 690. 
 
 SEARCH, 
 
 constitutional provision protecting against unwarranted 
 searches, 598. 
 
 SECURITY, 
 
 of the person, 50-53. 
 
 SEDUCTION, 
 
 parent's right to damages, 231, 574. 
 defined, 269. 
 
 SEIZURE, • 
 
 constitutional provision against unwarranted seizure, 598. 
 
 SELF-DEFENSE, 
 
 in assault and battery, 60. 
 defined, 254. 
 
 SENATE AS A COURT, 632. 
 
 SERVAN1, 
 
 See Master and Servant. 
 
 SEVERALTY, 
 
 estates in, 392. 
 
 SHELLEY'S CASE, 
 rule in, 389.
 
 iNDi:x 509 
 
 [References are to Sections] 
 
 SHERIFF, 656. 
 
 SHIP'S HUSBAND, 527. 
 
 SHIP'S MASTER, 527. 
 
 SIGNATURE, 
 
 under statute of frauds, 470. 
 
 SILENCE, 
 
 as fraud, 113. 
 
 SLANDER, 
 
 See Defamation, Libel and Slandeb. 
 distinguished from libel, 80. 
 liability of author for publication, 89. 
 
 SOCAGE, 
 
 free, 349. 
 
 SOCIAL UTILITY, 
 of law, 37-44. 
 
 SODOMY, 271. 
 
 SOURCES OF LAW, 
 
 See Historical Soubces; Legal Sources. 
 
 SOVEREIGNS, 
 
 crimes of, 626. 
 
 SPECIAL PROCEEDINGS, 616-624. 683-691. 
 
 SPECIFIC ENFORCEMENT, 
 
 application of remedy, 15. 
 
 STATE, 
 
 law of, defined, 2. 
 
 prosecution for criminal acts, 241. 
 
 contracts of, 442. 
 
 STATEMENT, 
 
 opening, 709. 
 
 STATUS AND CONTRACT, 424. 
 
 STATUTES, 
 
 as legal sources, 19, 23-29. 
 
 of United States and states, 25. 
 
 when in force, 25.
 
 510 INDEX 
 
 [References are to Sections^ 
 
 STATUTES— Continued, 
 validity of, 25. 
 
 must not violate constitution, 25. 
 retroactive, 26. 
 prospective, 26. 
 ex post facto, 26. 
 remedial, 26. 
 public, 27. 
 private, 27. 
 interpretation of, 28. 
 penal, 28. 
 
 technical words in, 28. 
 implied repeal, 28. 
 irrepealable statute, 558. 
 in derogation of common law, 28. 
 judicial legislation, 28. 
 repugnant, 28. 
 effect of repeal of repealing statute, 28. 
 
 STATUTE OF FRAUDS, 
 origin of, 461. 
 provisions of, 462. 
 
 promises of executors and administrators, 463. 
 debt, default and miscarriage, 464. 
 liability must be collateral, 465. 
 agreements in consideration of marriage, 466. 
 contract for sale of lands, 467. 
 
 agreements not to be performed within one year, 468. 
 note or memorandum, 469. 
 signature to memorandum, 470. 
 sale of goods, 499. 
 
 STATUTE OF LIMITATIONS, 396, 397. 
 
 STOCKHOLDERS, 
 
 corporation rights, 519. 
 
 STOPPAGE IN TRANSITU, 498. 
 
 STREAMS, 
 
 See Navigable Streams. 
 land bounded by, 315. 
 pollution of, 315. 
 use of, 315.
 
 INDEX 
 
 51i 
 
 \References are to Sectionsi 
 
 STRICT CONSTRUCTION, 
 
 statutes, 28. 
 
 STRIKES, 239. 
 
 SUBINFEUDATION, 342. 
 
 SUBPCENA, 670. 
 
 SUBPOENA DUCES TECUM, 670. 
 
 SUBSEQUENT CONDITION, 387. 
 
 SUCCESSION TO PERSONAL PROPERTY, 
 title by, 417. 
 
 SUFFERANCE, 
 
 estates at, 377. 
 
 SUFFRAGE, 
 
 provisions of fifteenth amendment, 593. 
 
 state to fix qualifications for congressmen ana electors, 593. 
 
 SUNDAY, 373. 
 
 SUPREME COURT OF THE UNITED STATES, 
 powers, 587. 
 jurisdiction of, 637. 
 
 SURETY, 
 
 defined, 481. 
 
 TAIL, 
 
 estates in, 380. 
 
 TENANT, 
 
 by curtesy, 381, 
 
 TENEMENT, 
 
 defined, 314, 345. 
 
 TENURES, 344-394. 
 
 ancient, 344-357. 
 
 in United States, how affected by feudal system, 358, 359. 
 
 TERRITORIAL COURTS, 643. 
 
 TERRITORIES, 
 
 constitutional provisions concerning control, 605.
 
 512 
 
 INDEX 
 
 [References are to /Sections] 
 TESTATE AND INTESTATE, 41^. 
 
 TIME, 
 
 how computed, 373. 
 
 TITHES, 323. 
 
 TITLE, 
 
 sources of in United States, 311, 360, 361. 
 
 by treaty, 312. 
 
 derived from Indians, 313. 
 
 in real estate, how acquired, 395-415. 
 
 by occupancy, 396. 
 
 by adverse possession, 397. 
 
 of occupying claimant, 398. 
 
 by marriage, 399. 
 
 by descent, 400. 
 
 by devise, 401. 
 
 by purchase, 405. 
 
 hy eminent domain, 413. 
 
 by escheat, 414. 
 
 by forfeiture, 415. 
 
 by partition, 691. 
 
 TITLE TO PERSONAL PROPERTY, 
 how acquired, 417. 
 by occupancy, 417. 
 by increase, 417. 
 by confusion, 417. 
 by gift, 417. 
 by sale, 417. 
 
 by succession or descent, 417. 
 by bequest, 417. 
 by judicial decree, 417. 
 when it passes under contract of sale, 498. 
 
 TITLE BOND, 405, 406. 
 
 TORTS, 
 
 law of, 45-240. 
 
 defined, 46-48. 
 
 distinguished from crimes, 47. 
 
 distinguished from breaches of contract, 48. 
 
 theory of the law, 49. 
 
 intentional injury to business relation, 235.
 
 INDEX 513 
 
 [References are to Sections] 
 TRADE-MARKS AND TRADE-NAMES, 191. 
 
 TREASON AND MISPRISION OF TREASON, 304. 
 
 TREATIES, 
 
 lands acquired by, 312. 
 
 constitutional provisions concerning treaty-making power, 60S. 
 
 by law, 626. 
 
 jurisdiction of cases involving, 637. 
 
 TRESPASS, 
 
 on land, 212. 
 malicious, 298. 
 
 TRIAL, 
 
 See JuEY Triai,. 
 
 in equity, 651. 
 
 in admiralty, 654. 
 
 in civil cases, 665. 
 
 in criminal cases, 701. 
 
 TRUSTEES, 
 
 frauds of, 108. 
 
 TRUTH, 
 
 in libel and slander, 93. 
 
 ULTRA VIRES, 
 
 acts of corporations, 517. 
 
 UNDERWRITER, 488. 
 
 UNDUE INFLUENCE, 
 
 effect on contract, 438. 
 
 UNITED STATES, 
 
 kinds and sources of law, 16-22. 
 
 UNITED STATES COMMISSIONERS, 642. 
 
 UNITED STATES COURTS. 
 See CoTJBTS. 
 
 UNWRITTEN LAWS, 18. 
 
 USAGE, 
 
 different from custom, 33. 
 33 — Elem. Law.
 
 514 INDEX 
 
 [References are to Sections] 
 
 UTILITY, 
 
 social utility of law, 37-44. 
 
 VENDOR'S LIEN, 332. 
 
 VENUE, 
 
 change of, 703. 
 
 VERDICT, 
 
 in civil cases, 677, 678. 
 criminal cases, 714. 
 
 VESTED REMAINDER, 388. 
 
 VICE PRINCIPAL, 
 defined, 551. 
 
 VILLENAGE, 349. 
 
 VOID AND VOIDABLE CONTRACTS, 489. 
 
 w 
 
 WARDSHIP, 335, 354. 
 
 WARRANT FOR ARREST, 
 arrest without, 695. 
 nature, 693. 
 when void or valid, 694. 
 
 WARRANTY, 
 
 See Express Warranty; Implied Wabbanty. 
 
 defined, 116. 
 
 distinguished from representation, 116, 491. 
 
 in insurance contracts, 491. 
 
 of thing sold, 497. 
 
 of title, 497. 
 
 of quality, 497. 
 
 apparent defects not covered by, 497. 
 
 WARRANTY DEED, 405. 
 
 WASTE, 207, 370. 
 
 WATER, 
 
 right to use, 328.
 
 INDEX 515 
 
 [References are to Sections] 
 
 WAY, 
 
 right of, 325. 
 
 WEEK, 373. 
 
 WILL, 
 
 estates at, 376. 
 
 WILLS, 
 
 antiquity and origin of, 402. 
 
 modern, creature of Roman law, 402. 
 
 who may make, 403. 
 
 codicils to, 403. 
 
 nuncupative, 403. 
 
 how made and attested, 403. 
 
 how revoked, 404. 
 
 of land, how executed, 404. 
 
 how set aside, 404. 
 
 foreign wills, 404. 
 
 WITNESSES, 
 
 privilege from arrest, 69. 
 in equity cases, 651. 
 in admiralty cases, 654. 
 in civil cases, 670-674. 
 privileged communications, 671. 
 in criminal cases, 710. 
 
 WRIT OF CERTIORARI, 624. 
 
 WRIT OF ERROR, 681. 
 
 WRITTEN CONTRACTS, 427. 
 
 WRITTEN LAWS, 24-28. 
 
 WRONGS, 
 
 See TOBTS. 
 
 YEAR, 
 
 how computed, 373. 
 
 agreement not to be performed within, 468, 
 
 YEARS, 
 
 estates for, 371.
 
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